Brown v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

MERSHELLA BROWN PLAINTIFF

NO. 4:19CV00174-JMV

ANDREW SAUL,

COMMISSIONER OF SOCIAL SECURITY DEFENDANT

OPINION AND ORDER DENYING MOTION

TO ALTER OR AMEND JUDGMENT

This cause is before the Court on Plaintiff’s motion [22] to alter or amend the September

28, 2020, Final Judgment [19], brought pursuant to FED. R. CIV. P. 59(e). The parties have

consented to entry of final judgment by the United States Magistrate Judge under the provisions

of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth Circuit. The Court,

having considered the briefing of the parties and applicable law, finds the motion is not well

taken for the reasons set out below.

Rule 59(e)

Rule 59(e) permits a litigant to file a motion to alter or amend a judgment. FED.

R. CIV. P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 28

days after the entry of the judgment.”). “[A]mending a judgment is appropriate (1) where

there has been an intervening change in the controlling law; (2) where the movant

presents newly discovered evidence that was previously unavailable; or (3) to correct a

manifest error of law or fact.” Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th

Cir. 2012) (citing Schiller v. Physicians Res. Group. Inc., 342 F.3d 563, 567 (5th Cir.

2003)).

A motion for reconsideration “is not the proper vehicle for rehashing evidence,

legal theories, or arguments that could have been offered or raised before the entry of

judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). Instead,

Rule 59(e) serves the narrow purpose of allowing a party to bring errors or newly

discovered evidence to the Court’s attention. See In re Rodriguez, 695 F.3d 360, 371 (5th

Cir. 2012). Moreover, “[r]econsideration of a judgment after its entry is an extraordinary

remedy that should be used sparingly.” Id. (citation omitted).

Judicial Review of Social Security Cases

Judicial review under 42 U.S.C. § 405(g) is limited to two inquiries: (1) whether

substantial evidence in the record supports the Commissioner’s decision and (2) whether

the decision comports with proper legal standards. See Villa v. Sullivan, 895 F.2d 1019,

1021 (5th Cir. 1990). “Substantial evidence is ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Greenspan v. Shalala, 38 F.3d

232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.

1420, 28 L. Ed. 2d 842 (1971)). “It is more than a mere scintilla, and less than a

preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (citing Moore v.

Sullivan, 919 F.2d 901, 904 (5th Cir. 1990)). “A decision is supported by substantial

evidence if ‘credible evidentiary choices or medical findings support the decision.’”

Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (citations omitted).

The court must be careful not to “reweigh the evidence or substitute . . . [its]

judgment” for that of the ALJ, see Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988),

even if it finds that the evidence preponderates against the Commissioner's decision.

Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell v. Bowen, 862 F.2d 471,

475 (5th Cir. 1988). If the Commissioner's decision is supported by the evidence, then it

is conclusive and must be upheld. Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994).

Discussion

Here, Plaintiff essentially rehashes the arguments that her diabetic ulcers met

listing 8.04 and the ALJ failed to deem the condition a severe impairment. These

arguments were adequately debunked in the Commissioners initial brief [15]. Beyond

presenting a chronology of various types of wounds on her right lower extremity,

Plaintiff points to no evidence she had chronic “extensive fungating or extensive

ulcerating skin lesions”—as defined by the listing—that persisted despite continuing

treatment as prescribed for the requisite period.1 Furthermore, Plaintiff failed to show

any prejudice from the ALJ’s failure to deem her “reoccurring diabetic ulcers a severe

impairment,” i.e., she failed to point to evidence in the record supporting a more

restrictive residual functional capacity finding. Therefore, because Plaintiff has failed to

point to any manifest error in the Court’s ruling, the instant motion is not well taken and

is DENIED.

SO ORDERED this 24th day of November, 2020.

/s/ Jane M. Virden

U.S. Magistrate Judge

1 See Audler v. Astrue, 501 F.3d 446, 449 (5th Cir. 2007) (supporting the proposition that remand is not required

where an ALJ fails to set out the basis for his Step 3 decision if the plaintiff fails to show she met her burden of

demonstrating she meets a listing). Furthermore, the Court should also point out that Plaintiff’s counsel’s

suggestion during oral argument that the subject listing has “a more narrow durational requirement than are typically

a part of this program” is misplaced and unsupported by any authority. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §

8.00 (C)(2) (“We will consider how frequent and serious your flare-ups are, how quickly they resolve, and how

you function between flare-ups to determine whether you have been unable to do any gainful activity for a

continuous period of at least 12 months or can be expected to be unable to do any gainful activity for a

continuous period of at least 12 months. We will also consider the frequency of your flare-ups when we

determine whether you have a severe impairment and when we need to assess your residual functional capacity.”)