McHugh v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Diane Lynn McHugh, No. CV-19-02399-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 On July 17, 2020, the Court issued an order affirming the denial of Plaintiff’s 16 application for Social Security disability benefits. (Doc. 18.) Plaintiff has now filed a 17 motion for reconsideration. (Doc. 20.) For the following reasons, that motion will be 18 denied. 19 LEGAL STANDARD 20 The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 21 42 F.3d 1185, 1198 (9th Cir. 1994). Nevertheless, reconsideration is an “extraordinary 22 remedy” that “should not be granted, absent highly unusual circumstances.” Kona Enters., 23 Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citations and internal quotation 24 marks omitted). 25 Local Rule 7.2(g)(2) provides that, “[a]bsent good cause shown, any motion for 26 reconsideration shall be filed no later than fourteen (14) days after the date of the filing of 27 the Order that is the subject of the motion.” Id. Local Rule 7.2(g)(1) further provides that 28 “[t]he Court will ordinarily deny a motion for reconsideration . . . absent a showing of 1 manifest error or a showing of new facts or legal authority that could not have been brought 2 to its attention earlier with reasonable diligence. . . . No motion for reconsideration . . . 3 may repeat any oral or written argument made by the movant in support of or in opposition 4 to the motion that resulted in the Order.” Id. Thus, reconsideration is appropriate only “if: 5 (1) There are material differences in fact or law from that presented to the Court and, at the 6 time of the Court’s decision, the party moving for reconsideration could not have known 7 of the factual or legal differences through reasonable diligence; (2) There are new material 8 facts that happened after the Court’s decision; (3) There has been a change in the law that 9 was decided or enacted after the Court’s decision; or (4) The movant makes a convincing 10 showing that the Court failed to consider material facts presented to the Court.” Honeywell 11 Int’l, Inc. v. Western Support Group, 2013 WL 2369919, *1-2 (D. Ariz. 2013). 12 DISCUSSION 13 As an initial matter, Plaintiff’s motion is untimely. The motion was filed on August 14 10, 2020, which is 24 days after the issuance of the order it seeks to challenge. Under 15 Local Rule 7.2(g)(2), motions for reconsideration must be filed within 14 days of the 16 challenged order “[a]bsent good cause shown,” and Plaintiff has made no attempt to show 17 good cause here. This, alone, justifies denial of the motion. 18 The motion also fails on the merits. In her opening brief, Plaintiff argued she was 19 entitled to reversal because the ALJ who adjudicated her case was not constitutionally 20 appointed at the time of her hearing. (Pl. Br. at 11–16.) In the July 17, 2020 order, the 21 Court “conclude[d], consistent with the conclusions reached by the overwhelming majority 22 of other courts to have addressed this issue, that Plaintiff forfeited her Appointments Clause 23 claim by failing to raise it at the ALJ level.” (Doc. 18 at 9.) The Court also considered, 24 and rejected, each of Plaintiff’s contrary arguments concerning the forfeiture issue. (Id. at 25 10-12.) 26 Plaintiff’s primary reconsideration argument is that the Court’s analysis is 27 inconsistent with Sims v. Apfel, 530 U.S. 103 (2000). (Doc. 20 at 1-3.) Yet the Court 28 addressed Sims at length in the July 17, 2020 order, explaining that the Ninth Circuit’s subsequent decision in Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017), confirmed that an “ALJ-level preservation requirement remains the law in the Ninth Circuit.” (Doc. 18 at 10.) Plaintiff also faults the Court for failing to consider a recent decision by the Third Circuit (Doc. 20 at 4), but this argument is both inaccurate (the Court stated that the 5|| “overwhelming majority” of courts have applied an ALJ-level preservation requirement, 6|| which is an acknowledgement that a few courts have reached the opposite conclusion) and || irrelevant (the Court is required to follow Ninth Circuit law). Finally, Plaintiff asks the 8 || Court to hold her reconsideration motion in abeyance pending the Ninth Circuit’s decision 9|| in Salas v. Saul, Dkt. No. 20-35233 (Doc. 20 at 4-5), but that case is not yet fully briefed || and likely won’t be resolved until 2021 or 2022. 11 Accordingly, IT IS ORDERED that Plaintiff's motion for reconsideration (Doc. || 20) is denied. 13 Dated this 13th day of August, 2020. 14 15 im a 16 } t □□□ Dominic W. Lanza 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28

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