Ghiselli v. Colvin

Filing 28

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph on 6/2/2014 denying 27 Motion to Alter Judgment. (cc: all counsel) (llc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEBORA GHISELLI,
Plaintiff,
v.

Case No. 13-CV-354

CAROLYN W. COLVIN,
Acting Commissioner, Social Security Administration,
Defendant.

DECISION AND ORDER ON PLAINTIFF’S MOTION TO ALTER OR AMEND
JUDGMENT PURSUANT TO FRCP 59(e)

Debora Ghiselli (“Ghiselli”), appealed the final decision of the Commissioner of the Social
Security Administration (“Commissioner”) denying her claim for disability insurance benefits under
the Social Security Act, 42 U.S.C. § 405(g). On March 26, 2014, I affirmed the decision of the
Commissioner of Social Security and dismissed the action. (Docket # 25.) Presently before me is
Ghiselli’s motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e).
For the reasons I explain below, Ghiselli’s motion is denied.
Fed. R. Civ. P. 59(e) allows a party to move the court to alter or amend a judgment within
28 days following the entry of the judgment. Rule 59(e) allows a court to alter or amend a judgment
only if the plaintiff can demonstrate a manifest error of law or present newly discovered evidence.
Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008). “A ‘manifest error’ is not demonstrated by
the disappointment of the losing party. It is the ‘wholesale disregard, misapplication, or failure to
recognize controlling precedent.’” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)

(quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997)). Relief under Rule 59(e) is an
extraordinary remedy reserved for the exceptional case. Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir.
2008).
Ghiselli argues that this Court’s decision contains factual and legal errors which support
amending the opinion and reversing the ALJ’s decision. (Docket # 27 at 1.) Ghiselli makes two
arguments which warrant discussion. First, regarding the plaintiff’s credibility determination, Ghiselli
argues that the Court’s reliance on Klahn v. Colvin, No. 13-CV-165, 2014 WL 841523 (E.D. Wis.
Mar. 4, 2014) was improper because the court’s reasoning in Klahn contravenes established principles
of law, as well as the Seventh Circuit’s holdings in multiple cases. Specifically, Ghiselli cites Seventh
Circuit cases where the court found the Commissioner violated the Supreme Court’s precedent as
established in SEC v. Chenery Corp, 318 U.S. 80 (1943). I disagree that Klahn contravenes established
law.
Klahn is distinguishable from the cases cited by Ghiselli. In Klahn, the ALJ made a credibility
determination and explained the finding with citations to the record. 2014 WL 841523, at * 10. The
Klahn court found that it would not be a violation of Chenery to consider additional evidence in the
record not explicitly cited by the ALJ to support findings that ALJ explicitly made. Id. at *11.
Whereas in Roddy v. Astrue, 705 F.3d 631, 637 (7th Cir. 2013), Mueller v. Astrue, 493 Fed. Appx. 772,
776, 2012 WL 3575274 (7th Cir. Aug. 21, 2012), and Parker v. Astrue, 597 F.3d 920, 922, 925 (7th Cir.
2010), the court found violations of Chenery where the Commissioner’s attorney relied on arguments
or rationale not relied on by the ALJ. Even in Mueller, where the Commissioner argued that he was
relying on the ALJ’s stated rationale and was simply providing additional evidentiary support, the
court makes clear that the ALJ provided no reasons for her rejection of the treating physician’s

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opinion and the court cannot, in the absence of a rationale by the ALJ, rely on the rationale
advanced by the Commissioner on appeal. 493 Fed. Appx. at 776.
As the court in Klahn explains, if consideration of the record as a whole violated Chenery, it
would be unnecessary for the court to review the administrative record. 2014 WL 841523, at * 11.
It would be sufficient for the court to review the ALJ’s decision by itself and only refer to the record
when the parties disputed whether the ALJ had accurately recounted the evidence. Id. This is not a
case like Parker, Roddy, or Mueller where the Commissioner argued the ALJ’s decision should be
upheld on a rationale not advanced by the ALJ. Rather, as in Klahn, the ALJ properly assessed
Ghiselli’s credibility, relying on record evidence, and this Court cited additional record evidence to
support a finding the ALJ explicitly made. Ghiselli’s disagreement with the court’s reasoning in
Klahn is far from a wholesale disregard, misapplication, or failure to recognize controlling precedent
required to show a manifest error of law.
Next, regarding the RFC finding, Ghiselli argues the Court’s decision was internally
inconsistent because the Court found that the ALJ did not properly explain how he arrived at the 10
percent off-task figure, while also finding that the ALJ relied on Dr. Delo’s opinion in giving Ghiselli
a sit-stand option. (Docket # 27 at 7.) Ghiselli asks, “how is it clear that the ALJ relied on Dr. Delo’s
opinion, which does not address the 10 percent off-task limitation?” (Id.) Ghiselli misunderstands the
Court’s finding. The Court held that the ALJ clearly relied on Dr. Delo’s opinion in assigning
Ghiselli a sit-stand option (See ALJ Hearing Decision, Tr. 29 “I furthermore find that exertional
limitations at the light range, along with a sit-stand option, are consistent with the claimant’s own
treating provider’s recommendations.”). The Court separately addressed the issue of the 10 percent
off-task figure, acknowledging that no doctor opined on the matter and Ghiselli provided no

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testimony on the issue. (Docket # 25 at 21-22.) Ghiselli’s disagreement with the Court’s reliance on
Zenka v. Astrue, 904 F. Supp. 2d 884, 901 (N.D. Ill. 2012) does not amount to a manifest error of law.
Further, Ghiselli argues that she presented evidence, in the form of Dr. Delo’s opinion, that she could
not engage in a eight hour workday, thus the ALJ’s finding of 90% on task was unsupported by the
record because she would be off work at least 50% of the time. (Docket # 27 at 9.) However, the
Court upheld the ALJ’s rejection of Dr. Delo’s four hour work restriction. (Docket #25 at 22-24.)
The balance of Ghiselli’s arguments are no more than restatements of her previous arguments.
A Rule 59(e) motion is not an appropriate forum for rehashing previously rejected arguments. Caisse
Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).
ORDER
NOW, THEREFORE, IT IS ORDERED that the plaintiff’s motion to alter or amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e) (Docket # 27) is DENIED.

Dated at Milwaukee, Wisconsin this 2nd day of June, 2014.

BY THE COURT:
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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