Opinion
Civil Action No: 00-2417-DJW
December 16, 2002.
MEMORANDUM AND ORDER
This matter comes before the Court on Defendant's Motion to Alter or Amend or, in the Alternative, for Clarification of the Court's Order filed on October 4, 2002 (doc. 27). Defendant Commissioner of Social Security (Commissioner) requests that the Court alter, amend, or clarify its Memorandum and Order dated September 19, 2002 (doc. 24) to show that upon remand, the opinion of Plaintiff's treating physician is not automatically entitled to controlling weight. Plaintiff has not filed any opposition to this motion.
The legal standards for a Fed.R.Civ.P. 59(e) motion to alter or amend judgment are the same as those for a motion to reconsider under D. Kan. Rule 7.3. The purpose of a motion to reconsider is to permit a party to bring to the court's attention fundamental legal errors that require the court to reconsider its earlier decision. To sustain a motion to reconsider, there must be a finding of manifest error of law or fact. It is not a proper use of Rule 59(e) to raise arguments or evidence that could and should have been raised prior to the entry of judgment or to rehash arguments previously considered by the court and rejected. The decision on whether to grant or deny a motion to reconsider is left to the discretion of the court.
Vanlerberghe v. Apfel, No. CIV.A. 98-2443-CM, 2000 WL 360104, at *1 (D.Kan. Mar. 3, 2000) (citations omitted).
Id. (citing Federated Mut. Ins. Co. v. Botkin Grain Co., 856 F. Supp. 607, 609 (D.Kan. 1994)).
All West Pet Supply Co. v. Hill's Pet Prods. Div., Colgate Palmolive Co., 847 F. Supp. 858, 860 (D.Kan.), amended by, 842 F. Supp. 1376 (D.Kan. 1994).
See id.; Botkin Grain Co., 856 F. Supp. at 609.
Henry v. Office of Thrift Supervision, No. 92-4272-DES, 1993 WL 545195, at *1 (D.Kan. Dec. 28, 1993) (citing Hancock v. Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988)).
In its Memorandum and Order dated September 19, 2002, the Court reversed the decision of the Commissioner and remanded the case back to the Commissioner for further proceedings. The Court included, inter alia, directions that upon remand the Commissioner would give controlling weight to the opinion of Plaintiff's treating physician, Dr. Greiner. This was based upon the Court's determination that the administrative law judge's articulated reasons for giving little weight to Dr. Griener's entire opinion concerning Plaintiff's diabetes and its complication and restrictions were either illegitimate reasons for discrediting the opinion or were not supported by substantial evidence in the record.
Defendant has now filed a motion seeking clarification of this directive, requesting that upon remand the administrative law judge be permitted to reject the opinions of Plaintiff's treating physicians if they are brief, conclusory, unsupported by specific clinical and laboratory diagnostic techniques and findings, inconsistent with other substantive evidence in the record, outside the physician's expertise, pertain to the ultimate issue of disability, or for other legitimate, specific reasons.
In the Court's September 19, 2002 Memorandum and Order remanding the case back to the Commissioner, the Court specifically noted the January 4, 1999 letter of Plaintiff's treating physician, K. Allen Greiner, M.D. In that letter, Dr. Greiner reported that he had treated Plaintiff for three years, serving as her primary care physician for general health maintenance and for treatment of emergent and urgent difficulties. Dr. Greiner opined that:
Ms. Herbert has several medical problems that cause ongoing difficulties. She has difficult to control diabetes mellitus, which requires high doses of insulin therapy. Her diabetes frequently leaves her with very high or very low blood sugars, resulting in difficulty functioning actively. She also has multiple complications from her diabetes including; chronic peripheral neuropathy (nerve pain in hands and lower legs), frequent urinary and skin infections, chronic mild renal insufficiency, visual problems, gastroparesis (poor stomach and bowel motility). In addition, Ms. Herbert sustained an injury to the right arm this last year requiring surgery and permanently damaging the nerves to her right hand, leaving her with numbness and weakness in the medial right hand.
The severity of Ms. Herbert's medical problems makes it likely that she will continue to have worsening of complications in the future. Since her diabetes is hard to control even using insulin shots she will progress to have loss of eyesight, loss of kidney function, continual infections and hospitalizations with eyesight and kidney function completely gone in a five year time frame. I believe she will be unable to perform in a work environment because of these problems. She cannot sustain employment because [she] has so many complications due to blood sugar abnormalities and other symptomatic problems. I do not feel that she has a drug problem, nor do I feel that past drug use is in some way affecting her ability to work.
Ms. Herbert has trouble with her treatment regimen because it is very complicated and she has minimal skills with literacy and comprehension. She also has limited support through family and friends.
In the ALJ's decision, he provided the following reasons for giving Dr. Greiner's opinion little weight:
Dr. Greiner has not opined that the claimant's current condition prevents her from working. His opinion is given little weight because he noted the claimant did not have a drug problem and her past drug use did not affect her ability to work. He also noted she has difficulty with literacy and comprehension which complicates her compliance; however, the undersigned finds the medical record shows that control of the claimant's blood sugars was quickly obtained when she was hospitalized or seen in the emergency room. Furthermore, there is evidence that she has a support group who can identify the symptoms of hypoglycemia even when masked with alcohol and cocaine use and attempt to administer appropriate treatment.
(Tr. 21-22)
The Court determined that although the ALJ articulated specific reasons for giving Dr. Greiner's opinion little weight, the articulated reasons were either not legitimate reasons for discounting Dr. Greiner's entire opinion concerning Plaintiff's diabetes or they were not supported by substantial evidence in the record. Based upon this determination, the Court directed that upon remand, Dr. Greiner's opinion be given controlling weight.
Under the standards for evaluating a Rule 59(e) motion, the Court determines that amendment of its September 19, 2002 Memorandum and Order is required to prevent manifest error of law or fact. The Court's Memorandum and Order dated September 19, 2002 is hereby amended to reflect that the opinion of Dr. Greiner is to be given controlling weight unless the Commissioner articulates specific, legitimate reasons, supported by substantial evidence, for discrediting the opinion.
IT IS THEREFORE ORDERED that Defendant's Motion to Alter or Amend or, in the Alternative, for Clarification of the Court's Order (doc. 27) is granted. The Court's Memorandum and Order dated September 19, 2002 is hereby amended to reflect that the opinion of Dr. Greiner is to be given controlling weight unless the Commissioner articulates specific, legitimate reasons, supported by substantial evidence, for discrediting the opinion.
IT IS SO ORDERED.