Keyes-Zachary v. Social Security Administration
Filing
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OPINION AND ORDER by Judge Claire V Eagan ; denying 25 Motion to Alter Order/Judgment (Re: 24 Judgment, Remanding Case, Entering Judgment,,,,, ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
PENNIE L. KEYES-ZACHARY,
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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,
Defendant.
Case No. 13-CV-0638-CVE-FHM
OPINION AND ORDER
Before the Court is defendant’s motion to alter or amend judgment (Dkt. # 25). Pursuant to
Federal Rule of Civil Procedure 59(e), defendant asks this Court to amend its previous judgment
(Dkt. # 24), which rejected the magistrate judge’s report and recommendation and remanded this
case to the Administrative Law Judge (ALJ). Plaintiff has not filed a response, but the Court is
entering this opinion and order prior to the expiration of plaintiff’s time to file.
I.
Plaintiff applied for benefits on July 15, 2010, stating that she was disabled and unable to
work. Dkt. # 13-5, at 2.1 Plaintiff’s claim was denied, and she sought review by an ALJ. Dkt. # 13-2,
at 32. The ALJ held a hearing in which he asked a vocational expert (VE) to testify about plaintiff’s
ability to work. Id. at 68. The ALJ posed a hypothetical question to the VE, including in the question
a limitation that the hypothetical person “avoid loud background noises.” Id. at 70. The VE
identified three jobs available in significant numbers in the national economy that the hypothetical
1
As the facts of plaintiff’s case are discussed in detail in the Court’s previous opinion and
order, see Dkt. # 23, at 1-4, the Court will discuss only what is relevant to defendant’s
motion.
person could perform: assembler, sorter, and marker. Id. The VE discussed the number of available
jobs in the economy for each of these positions. Dkt. # 13-2, at 72. However, the assembler and
marker positions had an associated noise level of “Level 4 - Loud,” DICTIONARY OF OCCUPATIONAL
TITLES §§ 706.684-022, 920.687-126 [hereinafter DOT], and the VE did not discuss this conflict.
The ALJ found plaintiff not disabled at step four of the analysis, but he then made an alternate
determination at step five that plaintiff was not disabled because she could perform other
occupations existing in significant numbers in the economy.2 Id. at 25-26. The ALJ specifically cited
the assembler, sorter, and marker positions identified by the VE in his step five determination. Id.
at 26-27. However, the ALJ did not make findings that each individual occupation existed in
significant numbers, only that all three positions together existed in significant numbers. Id. at 27.
Plaintiff filed this lawsuit, see Dkt. # 2, which was referred to the magistrate judge.
Plaintiff’s opening brief to the magistrate judge asserted, inter alia, that the ALJ erred at step five
because the ALJ relied on the VE’s testimony, which was in conflict with the DOT. Dkt. # 16, at 9.
The magistrate judge entered a report and recommendation, which recommended that the Court
affirm the ALJ’s finding of no disability. Dkt. # 21, at 11. Plaintiff thereafter filed an objection to
the report and recommendation, arguing that the ALJ’s decision at step five “is unsupported by the
fact [that] the VE’s testimony is unreliable and inconsistent with the DOT. Significantly, the ALJ
did not find [that] each of the three jobs individually existed in substantial numbers as required.”
2
At step five, the ALJ must consider a claimant’s residual functional capacity, age, education,
and work experience to determine if other work exists in the economy that a claimant is able
to perform. Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988). The ALJ must find not
only that the claimant can perform other occupations but also that there are a “significant
number” of available positions in the economy for those occupations. Evans v. Chater, 55
F.3d 530, 532 (10th Cir. 1995) (citing 20 C.F.R. § 404.1566(b)).
2
Dkt. # 22, at 1. Defendant did not file a response to plaintiff’s objection, despite being given time
to do so. Dkt. # 23, at 1.
This Court entered an opinion and order rejecting the magistrate judge’s report and
recommendation and remanding the case to the ALJ for further determination. Id. at 15. As to the
step five analysis,3 the Court found that, based on the noise restriction in the hypothetical question,
there was a conflict between the DOT and the VE’s testimony regarding the hypothetical person’s
ability to perform as an assembler or marker. Id. at 9. Because the ALJ did not attempt to resolve
this conflict, the ALJ could not rely on those positions to show that other work existed in significant
numbers. Id. at 9-10. There was no conflict as to the sorter position, but the ALJ did not make an
independent finding that the sorter position existed in significant numbers to find plaintiff not
disabled at step five. Id. at 10. The Court surveyed prior Tenth Circuit decisions for guidance as to
whether the Court, on its own, could determine if the number of available sorter positions met the
step five requirement for a significant number of jobs available in the economy. Id. at 10-14. The
Court found that it could make that determination in “the right exceptional circumstance,” id. at 13
(quoting Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004), but concluded that, for this case,
it would be better to remand the case to the ALJ for a proper determination. Id. at 14. Defendant now
argues that the Court should amend its judgment as to the ALJ’s alternate findings at step five.
II.
There are three possible grounds for granting a motion to amend under Rule 59(e): “(1) an
intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need
3
The Court’s opinion and order also concluded that the ALJ’s finding of no disability at step
four was not supported by evidence. Dkt. # 23, at 8. Defendant does not take issue with this
part of the Court’s analysis.
3
to correct clear error or prevent manifest injustice.” Monge v. RG Petro-Mach. (Grp.) Co., 701 F.3d
598, 611 (10th Cir. 2012) (quoting Somerlott v. Cherokee Nation Distrib., Inc., 585 F.3d 1144, 1153
(10th Cir. 2012)). Defendant advances two arguments in favor of amendment. First, defendant
contends that plaintiff waived the argument that the ALJ did not identify a significant number of
sorter positions by failing to raise it in the original brief to the magistrate judge. Dkt. # 25, at 2.
Second, defendant argues that case law in the Tenth Circuit establishes that the number of sorter
positions available in the economy is a “significant number” for purposes of the step five analysis.
Id. at 3. Although defendant did not address the requirements of a Rule 59(e) motion, the Court will
assume that each of defendant’s arguments is an attempt to “correct clear error or prevent manifest
injustice.” Monge, 701 F.3d at 611.
A. Waiver
Defendant’s first argument is that plaintiff waived her argument about the number of
available sorter positions by failing to make that argument in her opening brief to the magistrate
judge. Dkt. # 25, at 2. In the Tenth Circuit, “theories raised for the first time in objections to the
magistrate judge’s report are deemed waived.” United States v. Garfinkle, 261 F.3d 1030, 1031
(10th Cir. 2001); see also Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised
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for the first time in objections to the magistrate judge’s recommendation are deemed waived.”).4
This is often referred to as the firm waiver rule. United States v. One Parcel of Real Property, 73
F.3d 1057, 1059-60 (10th Cir. 1996). There are three exceptions to the firm waiver rule: “(1) when
a pro se litigant was not notified of the time period for filing an objection and the consequences of
failing to object; (2) when the interests of justice warrant; or (3) when the party that failed to object
makes a showing of plain error.” Derringer v. Chapel, 279 F. App’x 641, 644 (10th Cir. 2008)5
(citing Wardell v. Duncan, 470 F.3d 954, 958 (10th Cir. 2006)).6
The firm waiver rule does not apply here, as plaintiff raised the relevant legal theory--that
the ALJ’s determination at step five was flawed because it relied on VE testimony in conflict with
the DOT--in her initial brief to the magistrate judge. In that brief, plaintiff pointed out the
discrepancy in noise level between the VE’s testimony and the DOT as to the assembler and marker
positions. Dkt. # 16, at 9. Plaintiff went on to discuss the relevant standards by which an ALJ should
resolve a conflict, and she concluded by arguing that the ALJ’s finding was “unsupported by the
4
The Court notes that defendant appears to have waived its waiver argument. A Rule 59(e)
motion “is not . . . an opportunity for the losing party to raise new arguments that could have
been presented originally.” Matosantos Comm. Corp. v. Applebee’s Int’l, Inc., 245 F.3d
1203, 1209 n.2 (10th Cir. 2001). The issue of waiver, as defendant frames it, would have
been apparent when plaintiff filed her objection to the magistrate judge’s report and
recommendation. Defendant chose not to respond to plaintiff’s objection, despite being given
ample time to do so. See Dkt. # 23, at 1. However, in an unpublished case the Sixth Circuit
granted a Rule 59(e) motion under similar circumstances, see Doran v. Comm’r of Soc. Sec.,
467 F. App’x 446, 448-49 (6th Cir. 2012) (unpublished), and the Tenth Circuit has not yet
addressed whether waiver would apply to a situation like the present. Thus, the Court will
proceed to the merits of defendant’s argument.
5
Unpublished decisions are not precedential, but they may be cited for their persuasive value.
See FED. R. APP. 32.1; 10TH CIR. R. 32.1.
6
As the Court concludes that the firm waiver rule does not apply, the Court does not address
the applicability of the exceptions to the rule.
5
VE’s testimony and the substantial evidence of the record as a whole.” Id. The magistrate judge
certainly found that plaintiff raised the issue; the magistrate judge recommended affirming the ALJ’s
decision at step five because a “significant number” of such positions did exist. Dkt. # 21, at 10-11.
That analysis would have been wholly unnecessary if plaintiff had not presented the issue.
Plaintiff’s objection to the magistrate judge’s report and recommendation specifically
objected to the magistrate judge’s recommendation about the number of sorter positions. Dkt. # 22,
at 1 (“[T]he ALJ did not find each of the three jobs individually existed in substantial numbers as
required.” ). Her objection was both timely and specific, enabling review by the district court. FED.
R. CIV. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.” (emphasis added)); see also One Parcel, 73 F.3d at
1060. Although plaintiff may not have raised in her initial brief the particular point on which she
was eventually successful, she did raise the relevant legal theory, and Tenth Circuit precedent does
not require more. See Garfinkle, 261 F.3d at 1031.
B. “Significant Number” Analysis
Defendant’s second argument is that prior decisions by the Tenth Circuit, as well as by
district courts within the circuit, show that the number of available sorter positions meets the step
five requirement for a “significant number” of available jobs in the national economy. Dkt. # 25, at
3. The VE testified that there were 7,000 sorter positions available in the regional economy and
80,000 positions available nationally.7 Dkt. # 13-2, at 72. To show that there are a “significant
number” of sorter positions, defendant cites a number of cases, including: Trimiar v. Sullivan, 966
7
The Tenth Circuit has stated that the relevant number is the number of jobs available in the
national, not regional, economy. Raymond v. Astrue, 621 F.3d 1269. 1274 (10th Cir. 2009).
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F.2d 1326 (10th Cir. 1992) (650 to 900 available jobs); Botello v. Astrue, 376 F. App’x 847 (10th
Cir. Apr. 26, 2010) (67,250 available jobs); Posey v. Chater, 67 F.3d 312, 1995 WL 564590 (10th
Cir. 1995) (unpublished) (57,000 available jobs); Fields v. Chater, 66 F.3d 338, 1995 WL 544172
(10th Cir. 1994) (84,000 available jobs); and Johnson v. Colvin, No. CIV-13-726-W, 2014 WL
4215557 (W.D. Okla. Aug. 25, 2014) (69,700 available jobs). Defendant argues that, based on these
cases, the existence of 80,000 sorter positions available in the national economy satisfies the
“significant number” requirement of the step five analysis.
However, defendant misunderstands the context of the cited cases as compared to this case.
In Trimiar, which defendant discusses in detail, the Tenth Circuit stated that it “has never drawn a
bright line establishing the number of jobs necessary to constitute a ‘significant number’ and rejects
the opportunity to do so here.” Trimiar, 966 F.2d at 1330. The court limited its consideration to
whether the ALJ properly evaluated the factors necessary to determine if a particular number of
available positions was “significant.” Id. at 1330-31. The Tenth Circuit concluded by stating that
it “need not strain at numbers in reaching our conclusion that the ALJ’s decision is founded on
substantial evidence on the record.” Id. at 1332 (emphasis added). The other cited cases are similar,
with all of the courts finding that the ALJ had properly considered the relevant factors in
determining that a “significant number” of jobs existed in the national economy. See Botello, 376
F. App’x at 851; Posey, 1995 WL 564590, at *1; Fields, 1995 WL 544172, at *2; Johnson, 2014 WL
4215557, at *3. In each of these cases, the deciding court needed to determine whether the ALJ’s
finding that a particular number of jobs satisfied the step five analysis was supported by a proper
consideration of the facts.
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By contrast, to reach the conclusion defendant seeks, the Court would have had to find, on
its own and without the benefit of the ALJ’s consideration of the facts, that a “significant number”
of available sorter positions existed. This is not a case like those defendant cited, where the courts
needed only to review the ALJs’ findings. Cases of this type are relatively rare, and the results at the
Tenth Circuit are conflicting. See Dkt. # 23, at 13-4. In two unpublished cases, the Tenth Circuit
found 11,000 and 152,000 available positions in the national economy were a “significant number”
of available jobs. See Rogers v. Astrue, 312 F. App’x 138, 141-42 (10th Cir. 2009); Stokes v.
Astrue, 274 F. App’x 675, 684 (10th Cir. 2008). In another unpublished case, however, the Tenth
Circuit declined to make the required finding even though 200,000 jobs were available in the
national economy. See Norris v. Barnhart, 197 F. App’x 771, 777 (10th Cir. 2006). “The Tenth
Circuit has emphasized that ‘the issue of numerical significance entails many fact-specific
considerations requiring individualized evaluation’ and, as such, ‘the evaluation should ultimately
be left to the ALJ’s common sense in weighing the statutory language as applied to a particular
claimant’s factual situation.’” Dkt. # 23, at 13 (quoting Allen v. Barnhart, 357 F.3d 1140, 1144 (10th
Cir. 2004)). In light of the previous inconsistent decisions and the Tenth Circuit’s stated preference
to allow the ALJ to make the determination, the Court again declines to find that the 80,000 sorter
positions available in the national economy are a “significant number” of jobs.
IT IS THEREFORE ORDERED that defendant’s motion to alter or amend judgment (Dkt.
# 25) is hereby denied.
DATED this 26th day of January, 2015.
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