1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES MICHAEL ALLEN, Case No.: 21cv1271-NLS
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO ALTER JUDGMENT
14 KILOLO KIJAKAZI, Commissioner of [ECF No. 21] Social Security, 15 Defendant. 16
17 Pending before the Court is Plaintiff’s Motion to Amend Judgment. ECF No. 21. 18 The Court issued a briefing schedule. ECF No. 22. Pursuant to that order, Defendant 19 filed an opposition and Plaintiff filed a reply. ECF Nos. 23, 24. After due consideration, 20 the Court DENIES the motion. 21 I. Background 22 In this instant case, Plaintiff sought review of his Title II disability and Title XVI 23 supplemental security income application filed on May 31, 2019, alleging a disability 24 commencing January 1, 2015. AR 611-14, 615-21. The Commissioner denied the claims 25 initially on September 12, 2019, AR 505-510, and upon reconsideration on December 2, 26 2019. AR 513-19. On January 20, 2020, Plaintiff requested a de novo hearing before an 27 Administrative Law Judge (“ALJ”). AR 520. On March 2, 2021, the ALJ issued an 28 1 unfavorable decision denying Plaintiff’s request for disability benefits. AR 29-47. On 2 April 22, 2021, Plaintiff requested review of the ALJ’s decision. AR 607-610. The 3 Appeals Counsel denied Plaintiff’s request for review on June 7, 2021. AR 1-6. 4 In the ALJ’s decision, he found that Plaintiff’s obstructive sleep apnea and 5 incipient degenerative disc disease were severe impairments that significantly limited his 6 ability to perform basic work activities. AR 35. While there was evidence in the record 7 of other medically determinable impairments of hypertension, diabetes, and borderline 8 obesity, the ALJ determined these conditions were managed medically and considered 9 singly or in combination did not cause more than minimal limitation in his ability to 10 perform basic work activities, so they were therefore non-severe. AR 36. Additionally, 11 the ALJ found that Plaintiff’s medically determinable mental impairments of mood 12 disorder with depressive and bipolar traits; anxiety disorder, and post-traumatic stress 13 disorder (“PTSD”), with insomnia caused no more than minimal limitation in Plaintiff’s 14 ability to perform basic mental work activities and are therefore non-severe. The ALJ 15 determined that Plaintiff retained the RFC to perform medium work—the ability to lift 16 and carry fifty pounds occasionally and twenty-five pounds frequently—as defined in 20 17 C.F.R. § 404.1567c and 416.967c except: 18 [H]e is limited to frequently climbing ramps or stairs; occasionally climbing ladders; never climbing ropes or scaffolds; frequently balancing, stooping or 19 crouching; occasionally kneeling or crawling; must avoid work at 20 unprotected heights or around dangerous moving machinery; limited to occasional pushing and pulling with the lower extremities; and must avoid 21 concentrated exposure to dust, odors, fumes or pulmonary irritants. 22 AR 38. Based on this RFC, the ALJ found that there are jobs that exist in significant 23 numbers in the national economy that Plaintiff can perform and therefore, he was not 24 disabled. AR 42. 25 Plaintiff then appealed the ALJ’s decision to this Court. On March 9, 2023, the 26 Court issued an order denying Plaintiff’s motion for summary judgment and directing the 27 Clerk to enter judgment in the case. ECF Nos. 19, 20. In that order, the Court considered 28 1 several arguments raised by Plaintiff in his merits brief. First, the Court found that the 2 ALJ properly considered Plaintiff’s Lumbar and Cervical Impairments in determining his 3 RFC. AR 19 at 19-21. Second, the Court found that the ALJ’s finding that Plaintiff’s 4 mental impairment was not severe was supported by substantial evidence. Id. at 21-24. 5 Finally, the Court found that the ALJ properly weighed Plaintiff’s subjective symptom 6 and pain testimony. Id. at 24-27. 7 Thereafter, on March 30, 2023, Plaintiff filed the instant motion to amend the 8 judgment. ECF No. 21. The basis of the motion is a subsequent decision by the Social 9 Security Administration dated August 23, 2022, which found Plaintiff disabled as of July 10 22, 2021. Id. 11 II. DISCUSSION 12 Plaintiff argues that the subsequent August 23, 2022 decision warrants an 13 alteration of the previous judgment under Federal Rule of Civil Procedure 59(e) because 14 the new decision is new and material evidence that warrants a remand to determine if the 15 two decisions may be reconciled. ECF No. 21. Plaintiff submits that the decisions are in 16 tension because they are “diametrically opposed” at “adjacent” periods of time and the 17 disabilities alleged by Plaintiff in the two applications were of the “same type and quality 18 of evidence.” Id. at 5-6. 19 Defendant objects to the request on several grounds. First, Defendant argues that 20 the “new” evidence is not new nor material. The subsequent decision is dated August 23, 21 2022, months before this Court entered judgment, and Plaintiff does not explain why it 22 took months to file this motion. ECF No. 23 at 2-3. Second, Defendant argues that the 23 decisions are reconcilable because they are based on different time periods, with a 5- 24 months delta between the determinations, and the subsequent August 23, 2022 decision 25 cited to updated medical evidence. Id. at 3-5. Finally, Defendant argues that Plaintiff 26 also changed age categories between the two decisions. Id. at 5. 27 Under 42 U.S.C. § 405(g), a court may “remand the case to the Commissioner of 28 Social Security for further action by the Commissioner of Social Security, and it may at 1 any time order additional evidence to be taken before the Commissioner of Social 2 Security, but only upon a showing that there is new evidence which is material and that 3 there is good cause for the failure to incorporate such evidence into the record in a prior 4 proceeding.” See Luna v. Astrue, 623 F.3d 1032, 1034 (9th Cir. 2010); Bruton v. 5 Massanari, 268 F.3d 824, 827 (9th Cir. 2001), as amended (Nov. 9, 2001). New 6 evidence is considered “material” when it “‘bear[s] directly and substantially on the 7 matter in dispute,’ and if there is a ‘reasonabl[e] possibility that the new evidence would 8 have changed the outcome of the . . . determination.’” Bruton, 268 F.3d at 827 9 (alterations and omission in original) (quoting Booz v. Sec’y of Health & Human Servs., 10 734 F.2d 1378, 1380 (9th Cir. 1984)). 11 The parties both rely on Luna and Bruton, arguing that the situation here is more 12 akin to one verses the other. In Bruton, the Ninth Circuit held that a subsequent decision 13 that resulted in a disability finding did not warrant remand where the second application 14 “involved different medical evidence, a different time period, and a different age 15 classification.” 268 F.3d at 827. In that case, Bruton’s first application alleged an onset 16 disability date of April 6, 1993, and resulted in a written decision, dated April 9, 1996, 17 that Bruton was not disabled. Id. at 826. Subsequently, on February 26, 1999, the ALJ 18 awarded benefits on his second application, finding that he was disabled as of April 10, 19 1996. Id. at 827. In Luna, the Ninth Circuit differentiated the situation from Bruton.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES MICHAEL ALLEN, Case No.: 21cv1271-NLS
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO ALTER JUDGMENT
14 KILOLO KIJAKAZI, Commissioner of [ECF No. 21] Social Security, 15 Defendant. 16
17 Pending before the Court is Plaintiff’s Motion to Amend Judgment. ECF No. 21. 18 The Court issued a briefing schedule. ECF No. 22. Pursuant to that order, Defendant 19 filed an opposition and Plaintiff filed a reply. ECF Nos. 23, 24. After due consideration, 20 the Court DENIES the motion. 21 I. Background 22 In this instant case, Plaintiff sought review of his Title II disability and Title XVI 23 supplemental security income application filed on May 31, 2019, alleging a disability 24 commencing January 1, 2015. AR 611-14, 615-21. The Commissioner denied the claims 25 initially on September 12, 2019, AR 505-510, and upon reconsideration on December 2, 26 2019. AR 513-19. On January 20, 2020, Plaintiff requested a de novo hearing before an 27 Administrative Law Judge (“ALJ”). AR 520. On March 2, 2021, the ALJ issued an 28 1 unfavorable decision denying Plaintiff’s request for disability benefits. AR 29-47. On 2 April 22, 2021, Plaintiff requested review of the ALJ’s decision. AR 607-610. The 3 Appeals Counsel denied Plaintiff’s request for review on June 7, 2021. AR 1-6. 4 In the ALJ’s decision, he found that Plaintiff’s obstructive sleep apnea and 5 incipient degenerative disc disease were severe impairments that significantly limited his 6 ability to perform basic work activities. AR 35. While there was evidence in the record 7 of other medically determinable impairments of hypertension, diabetes, and borderline 8 obesity, the ALJ determined these conditions were managed medically and considered 9 singly or in combination did not cause more than minimal limitation in his ability to 10 perform basic work activities, so they were therefore non-severe. AR 36. Additionally, 11 the ALJ found that Plaintiff’s medically determinable mental impairments of mood 12 disorder with depressive and bipolar traits; anxiety disorder, and post-traumatic stress 13 disorder (“PTSD”), with insomnia caused no more than minimal limitation in Plaintiff’s 14 ability to perform basic mental work activities and are therefore non-severe. The ALJ 15 determined that Plaintiff retained the RFC to perform medium work—the ability to lift 16 and carry fifty pounds occasionally and twenty-five pounds frequently—as defined in 20 17 C.F.R. § 404.1567c and 416.967c except: 18 [H]e is limited to frequently climbing ramps or stairs; occasionally climbing ladders; never climbing ropes or scaffolds; frequently balancing, stooping or 19 crouching; occasionally kneeling or crawling; must avoid work at 20 unprotected heights or around dangerous moving machinery; limited to occasional pushing and pulling with the lower extremities; and must avoid 21 concentrated exposure to dust, odors, fumes or pulmonary irritants. 22 AR 38. Based on this RFC, the ALJ found that there are jobs that exist in significant 23 numbers in the national economy that Plaintiff can perform and therefore, he was not 24 disabled. AR 42. 25 Plaintiff then appealed the ALJ’s decision to this Court. On March 9, 2023, the 26 Court issued an order denying Plaintiff’s motion for summary judgment and directing the 27 Clerk to enter judgment in the case. ECF Nos. 19, 20. In that order, the Court considered 28 1 several arguments raised by Plaintiff in his merits brief. First, the Court found that the 2 ALJ properly considered Plaintiff’s Lumbar and Cervical Impairments in determining his 3 RFC. AR 19 at 19-21. Second, the Court found that the ALJ’s finding that Plaintiff’s 4 mental impairment was not severe was supported by substantial evidence. Id. at 21-24. 5 Finally, the Court found that the ALJ properly weighed Plaintiff’s subjective symptom 6 and pain testimony. Id. at 24-27. 7 Thereafter, on March 30, 2023, Plaintiff filed the instant motion to amend the 8 judgment. ECF No. 21. The basis of the motion is a subsequent decision by the Social 9 Security Administration dated August 23, 2022, which found Plaintiff disabled as of July 10 22, 2021. Id. 11 II. DISCUSSION 12 Plaintiff argues that the subsequent August 23, 2022 decision warrants an 13 alteration of the previous judgment under Federal Rule of Civil Procedure 59(e) because 14 the new decision is new and material evidence that warrants a remand to determine if the 15 two decisions may be reconciled. ECF No. 21. Plaintiff submits that the decisions are in 16 tension because they are “diametrically opposed” at “adjacent” periods of time and the 17 disabilities alleged by Plaintiff in the two applications were of the “same type and quality 18 of evidence.” Id. at 5-6. 19 Defendant objects to the request on several grounds. First, Defendant argues that 20 the “new” evidence is not new nor material. The subsequent decision is dated August 23, 21 2022, months before this Court entered judgment, and Plaintiff does not explain why it 22 took months to file this motion. ECF No. 23 at 2-3. Second, Defendant argues that the 23 decisions are reconcilable because they are based on different time periods, with a 5- 24 months delta between the determinations, and the subsequent August 23, 2022 decision 25 cited to updated medical evidence. Id. at 3-5. Finally, Defendant argues that Plaintiff 26 also changed age categories between the two decisions. Id. at 5. 27 Under 42 U.S.C. § 405(g), a court may “remand the case to the Commissioner of 28 Social Security for further action by the Commissioner of Social Security, and it may at 1 any time order additional evidence to be taken before the Commissioner of Social 2 Security, but only upon a showing that there is new evidence which is material and that 3 there is good cause for the failure to incorporate such evidence into the record in a prior 4 proceeding.” See Luna v. Astrue, 623 F.3d 1032, 1034 (9th Cir. 2010); Bruton v. 5 Massanari, 268 F.3d 824, 827 (9th Cir. 2001), as amended (Nov. 9, 2001). New 6 evidence is considered “material” when it “‘bear[s] directly and substantially on the 7 matter in dispute,’ and if there is a ‘reasonabl[e] possibility that the new evidence would 8 have changed the outcome of the . . . determination.’” Bruton, 268 F.3d at 827 9 (alterations and omission in original) (quoting Booz v. Sec’y of Health & Human Servs., 10 734 F.2d 1378, 1380 (9th Cir. 1984)). 11 The parties both rely on Luna and Bruton, arguing that the situation here is more 12 akin to one verses the other. In Bruton, the Ninth Circuit held that a subsequent decision 13 that resulted in a disability finding did not warrant remand where the second application 14 “involved different medical evidence, a different time period, and a different age 15 classification.” 268 F.3d at 827. In that case, Bruton’s first application alleged an onset 16 disability date of April 6, 1993, and resulted in a written decision, dated April 9, 1996, 17 that Bruton was not disabled. Id. at 826. Subsequently, on February 26, 1999, the ALJ 18 awarded benefits on his second application, finding that he was disabled as of April 10, 19 1996. Id. at 827. In Luna, the Ninth Circuit differentiated the situation from Bruton. 20 Luna’s first application alleged an onset date of March 26, 2003 and the ALJ denied her 21 claim on January 27, 2006. 623 F.3d at 1033-34. Luna filed a second application, which 22 was granted on August 20, 2007, and found her disabled as of January 28, 2006. Id. at 23 1034. The Luna court distinguished Bruton, finding that it could not determine “based on 24 the record before us whether the decisions concerning Luna were reconcilable or 25 inconsistent.” Id. at 1035. Noting that there was only one day between the denial of the 26 first application and the onset allegation date for the second application, the court 27 emphasized that “she may have presented different medical evidence to support the two 28 applications, or there might be some other reason to explain the change” and that remand 1 was proper in this circumstance for further factual proceedings. Id. 2 As expected, Plaintiff argues that this situation is more akin to Luna, while 3 Defendant argues that the situation is more akin to Bruton. Based on a review of these 4 two cases, the Court finds that what is most relevant here is whether the two conflicting 5 decisions considered the same or different medical evidence. In Defendant’s opposition, 6 Defendant submits the second determination and a review of that record reveals that there 7 was additional evidence that was considered, including the following: 8 • Plaintiff answered “yes” to the question “Since you last told us about your 9 medical conditions, has there been any CHANGE (for better or worse) in 10 your physical or mental condition?” He stated that the date of the change 11 was on October 29, 2021 and that the change was “Claimants’ diabetes is 12 progressively getting worse. He is experiencing constant back pain and 13 discomfort. He is unable to focus and concentrate.” ECF No. 23-1 at 3. 14 • Plaintiff answered “yes” to the question “Since you last told us about your 15 medical conditions, do you have any NEW physical or mental conditions? 16 He stated that the new condition started in October 2021 and he was recently 17 diagnosed with diabetes. Id. at 3-4. 18 • In the findings of fact and analysis of evidence, Medical Consultant V. 19 Michelotti had a physical consult with Plaintiff and noted that there was 20 “increasing back pain” including “radiation of back pain to LLE.” Id. at 12. 21 Noted decreased ROM of neck with pain. Noted that 22 SLR is positive seated and supine. Noted changes consistent with OA with nodes in 3rd and 4th digits with 23 deviation. Strength was 4/5 in left hand, and 4-5 in LLE. 24 Sensation was severely decreased io LLE, and in bilateral feet. Assessment indicates decreased ROM left knee as 25 well. MSS is somewhat confusing, as it posits L/C 50 26 occ, but only occ climbing. stooping and kneeling. Stooping is necessary to lift 50 pounds. In addition, OA 27 with arthritis will limit ability to lift. 28 1 • Dr. Michelotti stated that “[t]here has been a material change since the ALJ 2 decision.” Id. 3 • Dr. Michelotti also noted that the x-ray showed left knee OA (osteoarthritis), 4 severe multilevel ddd (degenerative disc disease) with spondyliolisthesis. 5 Id. It was noted that “Claimant did not have radicular symptoms at prior PE. 6 However, radicular symptoms now present are consistent with severe ddd 7 and spinal instability.” Id. 8 • Dr. Michelotti concluded that Plaintiff “reasonably requires a more 9 restrictive RFC.” Id. 10 • Plaintiff’s RFC was assessed down to a light work level, where he could 11 only occasionally lift twenty pounds and frequently lift 10 pounds, with 12 additional limitations. Id. at 16-19. 13 Thus, the Court finds that the new evidence that was considered in the second 14 decision that found Plaintiff disabled distinguishes this case from Luna. Unlike in Luna, 15 where the record was lacking and did not permit the court to determine the basis for the 16 second conflicting decision, that is not so in this case. The Court finds this factor more 17 determinative than the other factors regarding the close proximity of the disability periods 18 or the age classification.1 19 // 20 // 21 // 22 // 23 // 24
25 26 1 The Court also notes that Defendant takes issue with Plaintiff’s timing of bringing this motion when the second favorable determination was dated August 23, 2022. However, Plaintiff’s counsel does state 27 under the penalty of perjury that he did not receive the decision until March 20, 2023. ECF No. 21 at 7. Counsel does not explain the delay for why it took months to receive the determination, but the Court 28 1 Ht. CONCLUSION 2 For the reasons discussed above, the Court DENIES Plaintiff's motion to amend 3 || the judgment. 4 IT IS SO ORDERED. 5 ||Dated: June 15, 2023 6 Mite. Lemme 7 Hon. Nita L. Stormes 3 United States Magistrate Judge
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