Krell v. Colvin

Filing 27

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph on 11/17/2017 denying the Commissioner's 24 Motion to Alter Judgment; and granting Krell's motion for relief from judgment 25 . The court clarifies that the scope of review on remand is limited to the period of time between July 26, 2011 until March 3, 2014. (cc: all counsel) (llc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSEPH KRELL,
Plaintiff,
v.

Case No. 16-CV-951

NANCY A. BERRYHILL,
Acting Commissioner for Social Security,
Defendant.
DECISION AND ORDER ON PLAINTIFF’S AND DEFENDANT’S
MOTIONS FOR RECONSIDERATION
Joseph Krell appealed the final decision of the Commissioner of the Social Security
Administration denying his claim for a period of disability and disability insurance benefits
under the Social Security Act, 42 U.S.C. § 405(g). Krell argued the ALJ erred in three ways:
(1) that the ALJ willfully ignored Seventh Circuit precedents in refusing to allow Krell to see
the VE’s materials before or during the hearing; (2) that the ALJ erred by excluding a
durational requirement from his RFC; and (3) that the ALJ erred in citing Krell’s receipt of
unemployment benefits as a basis for minimizing his credibility.
On September 11, 2017, I issued a decision reversing and remanding the case. I
found the ALJ only erred in finding that Krell’s subpoena request failed to comply with the
regulations. Presently before me are motions from both parties for reconsideration. The
Commissioner moves to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e).
(Docket # 24.) Krell moves to either alter or amend the judgment under Rule 59(e) or for

relief from judgment under Rule 60(a). (Docket # 25.) For the reasons I explain below,
Krell’s motion is granted and the Commissioner’s motion is denied.
Rule 59(e) allows a party to move the court for reconsideration of a judgment within
28 days following the entry of the judgment. A motion for reconsideration serves a very
limited purpose in federal civil litigation; it should be used only “to correct manifest errors
of law or fact or to present newly discovered evidence.” Rothwell Cotton Co. v. Rosenthal &
Co., 827 F.2d 246, 251 (7th Cir. 1987) (quoting Keene Corp. v. Int’l Fidelity Ins. Co., 561 F.
Supp. 656 (N.D. Ill. 1982), aff’d 736 F.2d 388 (7th Cir. 1984)). “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)). Apart from manifest errors of law, “reconsideration is not for rehashing
previously rejected arguments.” Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90
F.3d 1264, 1270 (7th Cir. 1996). Whether to grant a motion for reconsideration “is left to
the discretion of the district court.” Id.
Rule 60(a) allows the court to “correct a clerical mistake or a mistake arising from
oversight or omission whenever one is found in a judgment, order, or other part of the
record.” Under Rule 60(a), a court can correct the record to show what was actually done in
the case; however, the rule cannot be used to change the record to reflect what should have
been done in the case. Blue Cross & Blue Shield Ass’n v. Am. Express Co., 467 F.3d 634, 637 (7th
Cir. 2006).
The Commissioner argues that I should reconsider the decision to remand the case
because the court committed both errors of law and fact. (Docket # 24 at 1.) The
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Commissioner argues that the ALJ denied the subpoena because, in his view, Krell had not
sufficiently stated what he intended to do with the subpoenaed information and because
Krell’s counsel had not shown that the facts he sought could not be proven without issuing a
subpoena. (Id. at 3.) The Commissioner argues that “[t]he Court’s remand order did not
consider whether the ALJ’s decision to deny the subpoena was independently justified by
his reasonable view that Plaintiff had not shown that he needed to subpoena the documents
to prove his case.” (Id.)
The Commissioner is incorrect. I addressed both grounds on which the ALJ denied
Krell’s subpoena request: “Again, the ALJ denied Krell’s subpoena request on the grounds
that Krell failed to state the important facts that the documents requested and demanded
were expected to prove and for failing to indicate why the facts could not be proven without
issuing a subpoena.” (Docket # 22 at 9.) I specifically considered the fact that the ALJ
denied Krell’s subpoena request “for failing to indicate why the facts could not be proven
without issuing a subpoena” and found that Krell could not challenge the foundation of the
vocational expert’s testimony without seeing the documents on which he relies. (Id.)
The Commissioner cites a decision issued after Krell’s decision by Chief Judge
William Griesbach in which Judge Griesbach found that an ALJ did not err in denying
counsel’s request for a subpoena because “this information is publically available and was as
accessible to counsel as it was to the VE,” thus the ALJ’s ruling was reasonable. Radosevich
v. Berryhill, No. 16-CV-1119, 2017 WL 4119626 (E.D. Wis. Sept. 18, 2017). Judge
Griesbach found that “counsel’s effort to transform what is intended to be a non-adversarial
information proceeding into a Daubert-style investigation into vocational evidence would
overwhelm an agency already struggling to adjudicate the millions of applications for
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disability benefits.” Id. at *15 (internal quotation and citation omitted). The Commissioner
argues that I should follow Judge Griesbach’s decision in Radosevich.
Judge Griesbach raises an important issue—requiring the VE to produce the
information he intends to rely upon at the hearing will increase the time and cost to an
already overwhelmed agency. And it is true that many of the sources the VE relies upon are
publically available. However, handling the matter on a post-hearing basis, as the
Commissioner suggests (Docket # 24 at 5), runs afoul of Britton v. Astrue, 521 F.3d 799 (7th
Cir. 2008) and McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004) that the “the data
underlying a VE’s testimony must be available on demand to facilitate cross-examination
and testing of the VE’s reliability.” 521 F.2d at 804. As I noted in the decision, the Seventh
Circuit has not addressed the interplay between the “available on demand” rule articulated
in Britton and McKinnie with the subpoena requirement articulated in 20 C.F.R. §
404.950(d)(2). Even if the sources on which the VE relies are publically available, this does
not allow for meaningful preparation and cross-examination as the Seventh Circuit intended
in Britton and McKinnie. The claimant would have to anticipate which sources the VE
intends to rely on at the hearing. This is an issue better resolved by the Seventh Circuit on
appeal. Because the Commissioner has failed to meet her burden of showing a manifest
error of law or fact, her motion for reconsideration is denied.
Krell also moves for reconsideration, arguing that the remand order failed to limit
the scope of remand to the time preceding March 3, 2014. (Docket # 26.) Krell argues that
he was only challenging the portion of the ALJ’s decision covering the time period from
July 26, 2011 to March 3, 2014. (Id. at 4.) The ALJ issued a partially favorable decision on
March 13, 2015, finding that Krell did not become disabled until March 3, 2014. (Docket #
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22 at 1.) Krell obviously does not want to disturb the favorable potion of the ALJ’s ruling on
remand. Although my remand order did not specifically state the particular time period to
be reviewed, I did note that the ALJ had issued a partially favorable decision and stated that
Krell only requests a period of disability from July 26, 2011 until March 3, 2014. (Docket #
22 at 1.) Thus, this was the only period of time set forth before me for review. As such, I
intended that upon remand, the ALJ would only review the claim for the time period that
Krell was found not to be disabled. Thus, I find that it is appropriate to clarify the judgment
pursuant to Rule 60(a) that upon remand, the ALJ should only review the claim from July
26, 2011 until March 3, 2014. See Scalf v. Astrue, No.10-1192, 2012 WL 2873999, at *3-4
(D.S.C. July 12, 2012). Thus, Krell’s motion is granted.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that the Commissioner’s
motion for reconsideration (Docket # 24) is DENIED.
IT IS FURTHER ORDERED that Krell’s motion for relief from judgment (Docket
# 25) is GRANTED. The court clarifies that the scope of review on remand is limited to the
period of time between July 26, 2011 until March 3, 2014.

Dated at Milwaukee, Wisconsin this 17th day of November, 2017.

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

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