Opinion
Case No. 01-4043-JAR
November 25, 2003
MEMORANDUM AND ORDER DENYING MOTION TO ALTER OR AMEND
This matter is before the Court on Defendant's Morion to Alter or Amend the Court's Order with Suggestions in Support (Doc. 17). Defendant moves the Court, pursuant to Fed.R.Civ.P. 59(e), to alter or amend its October 21, 2003 Order denying Defendant's objections to the Magistrate's report and recommendation. Plaintiff sought review of the Administrative Law Judges's (ALJ) decision. In that decision, the ALJ did not comment on the treating physician's note regarding decreased concentration. The Honorable John Thomas Reid issued a Recommendation and Report (Doc. 12) which found that the decision of the Commissioner should be reversed and remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for the limited purpose of determining whether Plaintiffs ability to concentrate is limited because of pain, and for any further proceedings necessary thereafter. Defendant objected to the report and recommendation, arguing that because Judge Reid found the ALJ's consideration of Plaintiff's subjective complaints was proper and supported by substantial evidence, and the ALJ properly considered the medical opinion evidence, the Commissioner's decision must be upheld.
This Court, pursuant to an Order dated October 21, 2003, denied Defendant's objection, finding that while the ALJ need not discuss every piece of evidence, the ALJ "must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." Because the notation was by Plaintiffs treating physician, the Court could not say that it was not "significantly probative" evidence. Defendant now seeks to alter or amend the Court's Order, arguing that the substantial evidence standard of review requires affirmance of this case.
Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (citations omitted).
Cf. Metivier v. Barnhart, 2003 WL 22176075 (D. Kan. 2003) (finding that the ALJ cannot be faulted for failing to attach significance to a statement in the notes of an interviewer in a Social Security Office, where no context or explanation is provided for the notation).
A motion to alter or amend judgment pursuant to Rule 59(e) may be granted only if the moving party can establish: (1) an intervening change in the controlling law; (2) the availability of new evidence that could not have been obtained previously through the exercise of due diligence; or (3) the need to correct clear error or prevent manifest injustice. Such a motion does not permit a losing party to rehash arguments previously addressed or to present new legal theories or facts that could have been raised earlier. The law in this circuit is clear that a Rule 59(e) motion "cannot be used to expand a judgment to encompass new issues which could have been raised prior to issuance of the judgment." Rule 59(e) motions
Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995).
Brown v. Presbyterian Healthcare Services, 101 F.3d 1324, 1332 (10th Cir. 1996), cert. denied 520 U.S. 1181 (1997).
Steele v. Young, 11 F.3d 1518, 1520 n. 1 (10th Cir. 1993); see also Charles Alan Wright, et al., Federal Practice and Procedure: Civil 2d § 2810.1 ("The Rule 59(e) motion may not be used . . . to raise arguments or present evidence that could have been raised prior to the entry of judgment").
are aimed at reconsideration, not initial consideration. Thus, parties should not use them to raise arguments which could, and should, have been made before judgment issued Motions under Rule 59(e) must either clearly establish a manifest error of law or must present newly discovered evidence.
Jorge Rivera Surillo Co. v. Falconer Glass Industries, Inc., 37 F.3d 25, 29 (1st Cir. 1994) (internal quotation marks omitted).
The Court finds that Defendant has failed to establish the need to correct clear error or prevent manifest injustice. Although the Court is cognizant that the report and recommendation in this case reflects all of the proper considerations the ALJ made, the Court is still unable to do a meaningful review where significantly probative evidence is rejected without comment. The Court is unwilling to find that the treating physician's note regarding decreased concentration in this particular case is not significantly probative evidence. The ALJ is charged with carefully considering all the relevant evidence and must "discuss the evidence supporting his decision . . . the uncontroverted evidence he chooses not to rely upon, [and] significantly probative evidence he rejects. "[A]ll of the ALJ's required findings must be supported by substantial evidence, and all of the relevant medical evidence or record must be considered in making those findings. When the ALJ does not provide any explanation for rejecting medical evidence, the Court is "left to speculate what specific evidence led the ALJ to [his conclusion]," and, thus, the Court cannot meaningfully review the ALJ's determination. Although the Court reviews the ALJ's decision for substantial evidence, it is "not in a position to draw factual conclusions on behalf of the ALJ." IT IS THEREFORE ORDERED that Defendant's Motion to Alter or Amend the Court's Order with Suggestions in Support (Doc. 17) shall be DENIED.
See Ann K. Wooster, Annotation, Effect of Administrative Law Judge's Failure to Explain Rejection of Probative Evidence in Social Security Disability Case, 167 A.L.R. Fed. 65, §§ 39, 73 and 91 (2001).
Clifton v. Chafer, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
See, Baker v. Bawen, 886 F.2d 289, 291 (10th Cir. 1989).
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
See, Clifton, 79 F.3d at 1009.
Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) (quotation omitted).
IT IS SO ORDERED.