The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT (Document 20)
On June 25, 2010, this Court issued its Order Regarding Plaintiff's Social Security Complaint wherein the agency's decision was reversed and the matter remanded for further proceedings. (Doc. 18.) On July 18, 2010, Plaintiff Terrence W. Campbell ("Plaintiff") moved to amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. (Doc. 21.) Defendant did not oppose Plaintiff's motion. Thereafter, on November 5, 2010, the Court ordered the parties to submit supplemental briefing addressing the applicability of Lockwood v. Commissioner of Social Security Administration, 616 F.3d 1068 (9th Cir. 2010), which was decided on August 16, 2010, subsequent to the filing of Plaintiff's motion. (Doc. 22.) Plaintiff submitted a supplemental brief on December 2, 2010 (Doc. 23) and Defendant filed its supplemental brief on January 2, 2011 (Doc. 24.)
Where a court's ruling has resulted in a final judgment or order, a motion for reconsideration may be based either on Rule 59(e) (motion to alter or amend judgment) or Rule 60(b) (motion for relief from judgment) of the Federal Rules of Civil Procedure.*fn1 See School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Rule 59(e) states "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of judgment." A district court has considerable discretion when considering a motion to amend a judgment under Rule 59(e). McDowell v. Calderon, 197 F.3d 1253, 1254 n. 1 (9th Cir. 1999); see also Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). There are four grounds upon which a Rule 59(e) motion may be granted: (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 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 R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003).
In the instant action, Plaintiff timely moved to amend the judgment by filing a motion within the twenty-eight day period. (Doc. 21.) Plaintiff has alleged both a manifest error of law and manifest injustice. (Doc. 21 at 2.)
Plaintiff has moved to amend the judgment with regard to the Court's decision to remand the case for further proceedings in order to better develop the record and thereby permit the Administrative Law Judge ("ALJ") to specifically consider whether to use the advanced age category explained in Title 20 of the Code of Federal Regulations section 404.1563. (Doc. 21 at 2-5.) Plaintiff argues that the "limited purpose" this Court identified as warranting remand can be resolved by review of the record. (Doc. 21 at 3.) Moreover, Plaintiff argues that he will suffer economic hardship in the form of delayed benefits as a result of waiting for this remanded case to be heard by the ALJ. (Doc. 21 at 5.) Defendant did not oppose this motion.
Following a request by this Court for supplemental briefing, Plaintiff argues that Lockwood v. Comm'r of Soc. Sec., 616 F.3d 1068, is not applicable. Specifically, Plaintiff contends that the instant matter "is readily distinguishable" from Lockwood and "was resolved on the basis that substantial evidence showed the ALJ had complied with 20 C.F.R. § 404.1563(b) whereas this case was resolved on the Court's express contrary finding . . .." (Doc. 23.) Defendant argues that Lockwood is relevant here, and in fact requires the Court to enter judgment in Defendant's favor. (Doc. 24.)
A. Plaintiff's Age and the Application of Title 20 of the Code of Federal Regulations section 404.1563(b)
At step five*fn2 of the disability analysis, the burden shifts to the Social Security Administration to demonstrate that the claimant is not disabled and that he or she can engage in some type of substantial gainful activity that exists in "significant numbers" in the national economy. In doing so, the ALJ considers the fact that the claimant cannot do any work that he or she has done in the past because of a severe impairment, considers the claimant's residual functional capacity, the claimant's age, education, and work experience, and determines whether the claimant can do any other work in the national economy. See 20 C.F.R. §§ 404.1520(f) & 416.920(f).
The ALJ's use of Plaintiff's age in making a disability determination is governed by Title 20 of the Code of Federal Regulations section 404.1563. In pertinent part, the regulation states:
In determining the extent to which age affects a person's ability to adjust to other work, we consider advancing age to be an increasingly limiting factor in the person's ability to make such an adjustment . . .. We will not apply the age categories mechanically in a borderline situation. If you are within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall impact of all the factors of your case. . . . If you are closely approaching advanced age (age 50- 54), we will consider that your age along with a severe impairment(s) and limited work experience may seriously affect your ability to adjust to other work. We consider that at advanced age (age 55 or ...