The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING DEFENDANT'S MOTION TO AMEND THE JUDGMENT (Doc. 24)
On July 23, 2010, Plaintiff Olivia Gonzales ("Plaintiff") filed a complaint seeking judicial review of an Administrative Law Judge's ("ALJ") decision denying Plaintiff's application for Social Security benefits. (Doc. 1.) On January 4, 2012, the Court issued an order reversing the ALJ's decision and the case was remanded to the agency. (Doc. 23.) On February 1, 2012, Defendant Michael J. Astrue ("Defendant") filed a motion to amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). (Doc. 24.) On February 6, 2012, Plaintiff filed an opposition to Defendant's motion. For the reasons that follow, Defendant's motion to amend the judgment is DENIED.
In assessing Plaintiff's Residual Functional Capacity ("RFC"), the ALJ determined that Plaintiff was able to "understand, remember, and carry out simple one or two-step job instructions." (AR 28.) At a hearing where Plaintiff testified with the assistance of counsel, a Vocational Expert ("VE") testified that, given Plaintiff's RFC, Plaintiff remained able to perform the world of unskilled, sedentary work. (AR 652.) On that basis, the ALJ concluded that Plaintiff was not disabled and denied her claim for benefits.
In seeking reversal of the ALJ's decision, Plaintiff argued, inter
alia, that her limitation to jobs involving only simple, one- or
two-step instructions was in conflict with the Dictionary of
Occupational Title's ("DOT") description of many of the jobs in the
unskilled category that the VE testified she could perform. In other
words, Plaintiff asserted that there was a conflict between the VE's
testimony that she could perform the world of unskilled work when many
of the jobs in the unskilled category required a general educational
development component level beyond her mental limitations.*fn2
As an ALJ is required to resolve any apparent conflict
between a VE's testimony and
the DOT pursuant to Social Security Ruling ("SSR") 00-4p, 2000 WL
1898704, Plaintiff claimed that the ALJ's failure to do so here was
In light of the absence of binding Ninth Circuit authority on this issue, the Court considered how numerous district courts in this Circuit, as well as other circuit courts of appeals, have decided the matter and found persuasive the majority of courts that determined that there is an inconsistency or an apparent conflict between the DOT's reasoning-level definitions and VE testimony that a claimant who is limited to tasks involving simple, one- or two-step instructions is able to perform jobs that require level-3 reasoning abilities.
Defendant asserts that the Court clearly erred in failing to apply the Ninth Circuit's unpublished memorandum decision in Wentz v. Astrue, and that the Court's analysis of whether the error by the ALJ was prejudicial was "unreasonable." (Doc. 24.) As such, Defendant moves the Court to alter or amend the January 4, 2012, judgment. (Doc. 24.)
Courts may alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e). Rule 59(e) is generally seen as "an 'extraordinary remedy, to be used sparingly'" and at the discretion of the Court. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citations omitted); see also McQuillion v. Duncan, 342 F.3d 1012, 1013 (9th Cir. 2003). A motion to alter or amend a judgment "'should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.'" McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (citations omitted). "To succeed [on a motion to alter or amend judgment], a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001).
1. Wentz v. Astrue is Not Binding and is Factually Distinguishable
Defendant argues that the Ninth Circuit's decision in Wentz v. Astrue, 401 F. App'x 189, 2010 WL 4269393 (9th Cir. 2010) directs that an ALJ has satisfied his duty under SSR 00-4p and Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007), by asking the vocational expert if the testimony offered is consistent with the DOT and, "if not, to obtain an explanation for any conflicts." Here, according to Defendant, the ALJ "asked the proper question, the vocational expert answered it and it was unchallenged by counsel." As such, ...