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Booven v. Astrue

October 15, 2010

DOUGLAS VAN BOOVEN II, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT

Plaintiff Douglas Van Booven II ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security denying his application for disability insurance benefits ("DIB") pursuant to Title II and supplemental security income ("SSI") benefits pursuant to Title XVI of the Social Security Act. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and the matter was assigned to the Magistrate Judge to conduct all further proceedings in the case, including entry of final judgment.

FACTS AND PRIOR PROCEEDINGS*fn1

On February 22, 2006, Plaintiff filed applications for DIB and SSI benefits under the Act, alleging disability from March 10, 2004. AR at 97-102. The applications were denied initially and on reconsideration. Id. at 45-60. On May 16, 2008, Plaintiff appeared with counsel and testified before an administrative law judge ("ALJ"). Id. at 19-44. In a decision dated July 24, 2008, the ALJ found that Plaintiff was not disabled within the meaning of the Act. Id. at 8-18. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. Id. at 1-4.

Plaintiff filed a complaint initiating this appeal of the Commissioner's final determination on March 12, 2009. Plaintiff filed an opening brief on October 20, 2009, raising the following claim of error:

A. The ALJ Committed Harmful Error in Rejecting the Assessments of Mr. Van Booven's Residual Function Derived from Treating Physicians and in Deferring to the Physical Function Opinions of a One-Time Consultative Internist

B. The ALJ Erred in Failing to Properly Credit the Mental Function Opinion of a Consultative Psychiatrist and in Deferring Instead to Findings of a Consulting Internist Who Did Not Perform Mental Status Testing (Doc. 10 at 15-18, 18-19).

On September 7, 2010, the Court granted remand pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings. In doing so, the Court found that the ALJ improperly discounted the opinions of two treating physicians and an examining consultative psychiatrist without providing specific and legitimate reasons supported by substantial evidence in the record. (Doc. 15 at 16). In addition, the Court noted that evidence concerning Plaintiff's level of functioning, in particular evidence not presented to the agency, could impact Plaintiff's eligibility for benefits. (See id. at 16-17).

On October 1, 2010, Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant"), filed a timely Motion to Alter or Amend Judgment pursuant to Federal Rule of Civil Procedure 59(e). (Doc. 17).*fn2

DISCUSSION

Defendant moves the Court to alter or amend its judgment entered on September 7, 2010. Defendant raises several claims of alleged error. First, he challenges the Court's determination that the ALJ improperly discounted the opinions of an examining psychiatrist, Dr. Shalts. (Doc. 17 at 1-4). Second, he challenges the Court's determination that the ALJ improperly discounted the opinions of two treating physicians, Drs. Mathisen and Singer. (Id. at 4-7). Defendant appears to challenge also the Court's conclusion that certain "new" evidence presented for the first time on appeal concerning Plaintiff's level of daily activity requires remand for further proceedings. (Id. at 7-8). In the alternative, Defendant seeks clarification as to whether remand is pursuant to sentence four or sentence six of 42 U.S.C. § 405(g). (Id. at 8).

A motion to alter or amend judgment under Rule 59(e) of the Federal Rules of Civil Procedure is in essence a motion for reconsideration. Rule 59(e) offers an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). The Ninth Circuit has consistently held that a motion brought pursuant to Rule 59(e) should be granted only in "highly unusual circumstances." Id.; see 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Such a motion may be granted in a court's discretion upon the following grounds: (1) the motion is necessary to correct manifest errors of law or fact upon which the judgment is based; (2) the moving party presents newly discovered evidence or previously unavailable evidence; (3) the motion is necessary to prevent manifest injustice; or (4) there is an intervening change in controlling law. Turner v. Burlington Northern Santa Fe Railroad Co., 338 F.3d 1058, 1063 (9th Cir. 2003); see also McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (per curiam). With respect to errors of law or fact, clear error is required before the Court may grant the motion. Kona Enterprises, Inc., 229 F.3d at 890. A motion for reconsideration is not a forum for the moving party to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation or make new arguments not raised in its original briefs. Id.; Northwest Acceptance Corp. v. Lynnwood Equipment, Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). Nor is it a time to ask the court to "rethink what it has already thought through." United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz. 1998).

Upon review, the Court concludes that Defendant does not allege new facts or a change of intervening law as a basis for reconsideration. Rather, he seeks reconsideration based upon his ...


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