Mooney v. Shalala

Opinion

Mooney v. Shalala CV-94-195-L 01/23/95 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Mooney

v. #C-94-195-L

Donna Shalala, Secretary of Health & Human Services

ORDER

Before the court is plaintiff, Robert Mooney's motion for

reconsideration pursuant to Federal Rule of Civil Procedure

59(e). Plaintiff challenges the Secretary's finding that

sufficient numbers of jobs exist in the regional and national

economy which are capable of performance by the plaintiff.

Plaintiff asserts that since the jobs listed by the

administrative law judge (ALJ), in his final decision, do not

exist in "significant numbers" or are not physically able to be

performed by plaintiff, the jobs must be disregarded and the case

remanded for a further clarification on what jobs the plaintiff

is classified to perform.

DISCUSSION

Rule 59(e) motions are granted in instances where the trial

court has made a manifest error of law or fact, where there is discovery of new evidence, or where there is an intervening

change in the law. Haves v. Douglas Dynamics, 8 F.3d 88, 91 n.3

(1st Cir. 1993), guoted in Pedro Adorno v. Secretary of Health

and Human Services, (D. Mass., March 2, 1994) (slip op. CAN90-

30237-FHF). "Rule 59(e) does not allow the losing party to

repeat old arguments previously considered and rejected, or to

raise new legal theories that should have been raised." National

Metal Finishing Co. v. Barclays American/Commercial, Inc., 8 99

F .2d 119, 123 (1st Cir. 1990).

In the case at hand, the ALJ, in finding Mr. Mooney not

disabled within the context of the Social Security Act, noted in

his final decision that

even if the claimant were limited to work in the sedentary range he would not be found disabled under the Act. However, I find that he can perform work in the light exertional range.

Tr. 18.

Further, the ALJ determined that

[t]he claimant has the residual functional capacity to perform the exertional and nonexertional reguirements of light work except for lifting and/or carrying more than ten pounds; walking for prolonged periods of time; crawling; crouching; performing extensive climbing, stooping, kneeling, pushing, pulling and speaking for prolonged period of time and being exposed to extremes of temperature, dust, fumes, chemicals and humidity. •k k k

Although the claimant's limitations do not allow him to

2 perform the full range of light work, . . . there is a significant number of jobs in the national economy which he could perform. Examples of such jobs are a cashier, a ticket taker, a taper, a film touch-up inspector, an order clerk and a telephone guotation clerk.

Tr. 19-20.

Following a review and synthesis of the ALJ's findings, this

court held

[t]he activities, in which the claimant engages, entail certain degrees of sitting, standing, walking, pushing, pulling and other physical functions. Therefore, in determining an appropriate RFC, these physical functions were appropriately considered and were not an overemphasis on daily activities. 20 C.F.R., Chapter III, § 404.1562. Following the claimant's RFC determination, the ALJ then concluded that Mr. Mooney is capable of performing work in the light range, "except for lifting and/or carrying more than ten pounds; walking for prolonged periods of time; crawling; crouching; performing extensive climbing, stooping, kneeling, posing, pulling and speaking for prolonged periods of time and being exposed to extremes of temperature, dust, fumes, chemicals and humidity (20 CFR 404.1545)." Tr. 19.

This court, within its previous order, also expressed that

the ALJ properly used the RFC determination, and restrictions

associated with the determination, in posing hypotheticals to the

vocational expert. Concisely, in considering the restrictions

and limitations, the vocational expert testified that Mr. Mooney

is capable of performing jobs such as a cashier, ticket taker,

taper of printed circuit boards and a film touch up inspector.

3 Further, as expressed by the ALJ (Tr. 20), the jobs listed

or identified by the vocational expert do exist in significant

numbers within the economy. Germane to the conclusion of

"significant numbers", the vocational expert testified to the

following:

Job Title (Sedentary Only) NH US

Cashier 3, 677 77,337

Film touch-up inspector 260 31,310

Telephone guotation clerk 84 29,724

Taper 154 42,000

Order clerk 260 77,000

_____ Job Title (Light Only)____ NH US

Cashier 5,515 116,006

Film touch-up inspector 2,183 263,006

Telephone guotation clerk 82 14,640

Ticket taker 55 28,516

T r . 7 8-90.

As discussed by this court in Manchester v. Sullivan, C-90-

481-L (D.N.H., March 28, 1991) and Latulippe v. Shalala, C-92-

497-L (D.N.H., July 26, 1993), the availability of less than 750

jobs may constitute "significant numbers" of jobs. See also

4 Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988) (500 jobs i

significant number); Salazar v. Califano, (CCH para 15, 835) (E.D.

Cal. 1978)(600 jobs is significant number); Uravitch v. Heckler,

Civ. 84-1619-PHX-PGR, slip op. (D.Az., May, 1986)(even though 60

70% of 500-600 relevant positions reguired experience plaintiff

did not have, remaining positions constitute significant number)

In the instant case, the collective number of jobs available to

Mr. Mooney is far in excess of the above mentioned numbers.

In sum, plaintiff's argument that the "record is not clear

on the various jobs identified by the VE and the various job

numbers" (Doc. 15) is not compelling. Succinctly, there is no

new evidence presented, no intervening change in laws, and no

manifest error of law or fact committed by this court. As

plaintiff presents no new or material argument and merely

reiterates positions taken at the hearing or within his original

motion for reversal (Doc. 9), this court will not reconsider

plaintiff's claim and remand the matter for further

consideration. Plaintiff's motion for reconsideration (Doc. 15)

pursuant to Rule 59(e) is denied.

January 23, 1995

Martin F. Loughlin Senior Judge

Raymond J. Kelly, Esg. David L. Broderick, Esg.