Lemley v. Colvin et al

Filing 48

ORDER denying 46 Plaintiff's Motion for Reconsideration. Signed by Magistrate Judge John T. Rodgers. (KW, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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10 MAURIE LEMLEY,

No. 2:13-CV-0299-JTR

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ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION

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Plaintiff,
v.

14 CAROLYN W. COLVIN,
Commissioner of Social Security,
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Defendant.

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BEFORE THE COURT is Plaintiff’s Rule 59 Motion for Reconsideration.

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ECF No. 46. Plaintiff is represented by Dustin Deissner. Defendant is represented

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by Jeffrey E. Staples, Special Assistant United States Attorney. The parties have

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consented to proceed before a magistrate judge. ECF No. 7.

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BACKGROUND
Plaintiff filed applications for Disability Insurance Benefits and

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Supplemental Security Income on June 2, 2010, alleging disability since April 1,

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2010, due to hepatitis C with chronic muscle and joint pain; rheumatoid arthritis;

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gout; and depression. The applications were denied initially and upon

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reconsideration. An Administrative Law Judge (ALJ) held a hearing with respect

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to Plaintiff’s claims on April 24, 2012, and issued an unfavorable decision on June
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION - 1

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11, 2012. The Appeals Council denied review on June 13, 2013, and Plaintiff

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thereafter filed this action for judicial review. ECF No. 2, 5.

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Plaintiff raised the following issues before this Court: (1) a missing medical

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report from Dr. Thomas R. Hull should have been provided; (2) the ALJ erred at

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step two by not finding fibromyalgia and myofascial pain were severe

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impairments; (3) the ALJ failed to properly consider the statements of lay

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witnesses; (4) the physical RFC determination was improper; (5) the determination

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with respect to Plaintiff’s credibility was flawed; and (6) the ALJ improperly relied

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on the medical opinions of Drs. Belzer, Scottolini, Weir and Awbery. The issues

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were fully briefed by the parties, and oral argument was heard by the Court on

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April 14, 2014. ECF No. 42. On April 15, 2014, the Court entered an order

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finding the ALJ’s decision in this matter was supported by substantial evidence

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and free of error. ECF No. 43. Accordingly, the Court granted Defendant’s

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motion for summary judgment, denied Plaintiff’s motions for summary judgment,

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and closed the case. ECF No. 43.

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DISCUSSION

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On April 29, 2014, Plaintiff moved the Court to reconsider the April 15,

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2014 order pursuant to Fed. R. Civ. P. 59. ECF No. 46.
It is a basic principle of federal practice that “courts generally . . . refuse to

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reopen what has been decided . . . .” Messinger v. Anderson, 225 U.S. 436, 444

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(1912). Reconsideration is appropriate if a court: (1) is presented with newly

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discovered evidence; (2) has committed clear error or the initial decision was

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manifestly unjust; or (3) is presented with an intervening change in controlling law.

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School District 1J, Multnomah County v. A C and S, Inc., 5 F.3d 1255, 1263 (9th

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Cir. 1993), cert. denied, 512 U.S. 1236, (1994). There may also be other highly

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unusual circumstances warranting reconsideration. Id. However, a motion for

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reconsideration “offers an ‘extraordinary remedy, to be used sparingly in the

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interests of finality and conservation of judicial resources.’” Carroll v. Nakatani,
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION - 2

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342 F.3d 934, 945 (9th Cir. 2003) (quoting 12 James Wm. Moore et al., Moore’s

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Federal Practice § 59.30[4] (3d ed. 2000)). “Motions for reconsideration serve a

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limited function: to correct manifest errors of law or fact or to present newly

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discovered evidence.” Publisher’s Resource, Inc. v. Walker Davis Publications,

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Inc., 762 F.2d 557, 561 (7th Cir. 1985) (quoting Keene Corp. v. International

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Fidelity Ins. Co., 561 F.Supp. 656, 665-666 (N.D. Ill. 1982), aff’d, 736 F.2d 388

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(7th Cir. 1984)); see Novato Fire Protection Dist. v. United States, 181 F.3d 1135,

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1142, n.6 (9th Cir. 1999), cert. denied, 529 U.S. 1129 (2000). Absent exceptional

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circumstances, only three arguments provide an appropriate basis for a motion for

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reconsideration: arguments based on newly discovered evidence, arguments that

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the court has committed clear error, and arguments based on “an intervening

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change in the controlling law.” 89 Orange St. Partners v. Arnold, 179 F.3d 656,

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665 (9th Cir. 1999). Plaintiff fails to present newly discovered evidence and is not

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arguing there has been an intervening change in controlling law. It thus appears

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Plaintiff contends the Court committed manifest errors of law by not finding in his

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favor on the issues briefed and argued by the parties in this case. ECF No. 46.

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While Plaintiff continues to argue that the medical report of Dr. Thomas R.

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Hull should have been provided, ECF No. 46 at 2-3, Plaintiff did not previously

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present rationale as to how Dr. Hull’s report was material to the case and only now

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asserts Dr. Hull’s report addressed Plaintiff’s bursitis.1 The ALJ determined in this

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case that Plaintiff was limited to a restricted range of light exertion level work,

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including the restriction of only occasional overhead reaching. Tr. 76-77. As

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As previously indicated by the Court, Defendant informed Plaintiff that Dr.

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Hull’s report had been discovered, and Plaintiff was given the opportunity to

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consent to disclosure regarding information pertaining to Dr. Hull. ECF No. 43 at

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5-6. Plaintiff has not, however, provided his consent to the disclosure of the Dr.

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Hull report.
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION - 3

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indicated by the Court, the ALJ’s physical RFC determination is consistent with or

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more restrictive than the limitations assessed by all medical professionals of

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record. ECF No. 43 at 10-11. A consultative examination report by Dr. Hull,

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which apparently mentions Plaintiff’s issues with bursitis, would not undermine

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the great weight of the record evidence, including the opinions of Dr. Belzer, Dr.

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Scottolini, Dr. Weir and Dr. Awbery, which reflects that Plaintiff was limited to no

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greater than a restricted range of light exertion level work during the relevant time

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period. ECF No. 43 at 10-11. Consequently, any alleged error based on the ALJ’s

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failure to consider a report by Dr. Hull is harmless. See Johnson v. Shalala, 60

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F.3d 1428, 1436 n.9 (9th Cir. 1995) (an error is harmless when the correction of

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that error would not alter the result). An ALJ’s decision will not be reversed for

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errors that are harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)

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(citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991).

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Plaintiff next argues the ALJ erroneously failed to consider Dr. Angell’s

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diagnoses of fibromyalgia under alternative diagnostic criteria and myofascial pain

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syndrome as a differential diagnosis. ECF No. 46 at 4-5. Plaintiff’s argument in

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this regard was previously addressed by the Court. ECF No. 43 at 6-8. As

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appropriately determined by the Court, the ALJ reasonably concluded Plaintiff’s

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alleged fibromyalgia and myofascial pain disorder were not severe, medically

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determinable impairments. Id.

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Plaintiff lastly argues the ALJ’s credibility determination is flawed because

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the ALJ failed to consider Plaintiff’s explanation regarding the medical records of

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Dr. Metcalf which report Plaintiff displayed drug-seeking behavior. ECF No. 46 at

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5. As previously indicated by the Court, an ALJ may properly consider evidence

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of a claimant’s drug use and drug-seeking behavior in assessing credibility, and

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evidence other than the reports of Dr. Metcalf showed doctors had referred to

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Plaintiff taking Vicodin chronically and had encouraged him to taper off this drug

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as it was not indicated. ECF No. 43 at 13. In any event, the ALJ provided reasons
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other than Plaintiff’s drug-seeking behavior, which are clear, convincing and fully

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supported by the record, for finding Plaintiff less than fully credible in this case.

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ECF No. 43 at 11-14.

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Plaintiff has not presented newly-discovered evidence and is not contending

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there has been an intervening change in controlling law. Plaintiff has additionally

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failed to show a clear error of law exists with respect to the Court’s April 15, 2014

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order. Plaintiff has thus failed to provide a proper basis for the Court to reconsider

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the April 15, 2014 order under Rule 59.

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The Court notes Fed. R. Civ. P. 60(b) provides another avenue for

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reconsideration upon a showing of (1) mistake, inadvertence, surprise, or excusable

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neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a

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satisfied or discharged judgment; or (6) any other reason justifying relief. Fed. R.

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Civ. P. 60(b). However, Plaintiff has demonstrated no new or different facts or

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circumstances; fraud; void, satisfied or discharged judgment; or mistake,

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inadvertence, surprise, or excusable neglect to warrant reconsideration. Plaintiff

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has also not alleged that relief is appropriate under Rule 60(b)(6). Relief is

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therefore unavailable under Rule 60(b) as well.

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CONCLUSION
Plaintiff has failed to provide a proper basis for the Court to reconsider the

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April 15, 2014 order under Rule 59 or Rule 60(b). Accordingly, Plaintiff’s Motion

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for Reconsideration, ECF No. 46, is DENIED.

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IT IS SO ORDERED. The District Court Executive is directed to file this
Order and provide copies to counsel for Plaintiff and Defendant.
DATED May 27, 2014.

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_____________________________________
JOHN T. RODGERS
UNITED STATES MAGISTRATE JUDGE

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ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION - 5