McCarthy v. Berryhill
| Decision Date | 30 April 2020 |
| Docket Number | Civil Action No. 18-cv-02800-CMA |
| Parties | ABIGAIL ALYNN MCCARTHY, Plaintiff, v. NANCY BERRYHILL, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Colorado |
ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO FED. R. CIV. P. 59(e)
This matter is before the Court on the Commissioner's Motion to Alter or Amend Judgment Pursuant to Fed. R. Civ. P. 59(e) (Doc. # 26). Because this Court did not err in applying Social Security Ruling ("SSR") 96-6p, and, even if SSR 17-2p applied, the Administrative Law Judge's ("ALJ") Step Three finding was nonetheless unsupported by substantial evidence, the Commissioner's Motion is denied.
This Court's Order Reversing Denial of Social Security Disability Benefits and Supplemental Security Income (Doc. # 24) provides a thorough recitation of the factual and procedural background of this case. That Order is incorporated herein by reference, and the facts will be repeated only to the extent necessary to address the instant Motion.
On October 27, 2015, Plaintiff applied for both Social Security DIB pursuant to Title II of the Social Security Act and SSI under Title XVI of the Social Security Act (Doc. # 16-6 at 2-7), claiming that she was unable to work due to disability as of May 15, 2014 (id.). Both claims were initially denied on January 21, 2016. (Doc. # 16-4 at 28-51.) Subsequently, Plaintiff filed a written request for a hearing on February 24, 2016, and that hearing was held on September 19, 2017, where Plaintiff was represented. (Doc. # 16-2 at 12; Doc. # 16-3 at 71-89.) On December 11, 2017, ALJ Mark R. Dawson issued a written decision in which he denied Plaintiff's claims for DIB and SSI. (Doc. # 16-2 at 12-22.)
Plaintiff appealed, and the Appeals Council denied her request for review (id. at 2-5), making the ALJ's decision the final decision of the Commissioner of the Social Security Administration ("Commissioner"). On March 26, 2020, the Court reversed the ALJ's denial of social security benefits because the ALJ failed to obtain and consider a State medical expert opinion on the issue of medical equivalency as required under SSR 96-6p. (Doc. # 24 at 9-14.) Thus, the Court remanded the matter back to the Commissioner so that the Commissioner could obtain an opinion on medical equivalence as to whether Plaintiff's irritable bowel syndrome/ulcerative colitis and several spans of hospitalizations from 2016 and 2017 constituted the medical equivalent of Listing No. 5.06(A). (Id. at 14-15.)
On April 24, 2020, the Commissioner moved for reconsideration under Federal Rule of Civil Procedure 59(e) and requested that this Court alter or amend its judgment to affirm the ALJ's decision. (Doc. # 26 at 5.) Specifically, the Commissioner contendsthat this Court erred by misapprehending the controlling law and reviewing the ALJ's decision under SSR 96-6p rather than SSR 17-2p. (Id. at 1-2.) The Commissioner suggests that, had the Court applied SSR 17-2p, which does not require the ALJ to obtain a medical opinion addressing medical equivalence, the ALJ's Steps Four and Five findings were sufficient to support his Step Three finding. (Id. at 4-5.) Thus, the Commissioner requests that the Court reconsider its decision "based on the ruling in effect at the time of the ALJ's decision[.]" (Id. at 2.)
On April 29, 2020, Plaintiff responded to the Commissioner's Motion (Doc. # 27) and represents that she agrees with the Commissioner that SSR 17-2p applies to the instant case (id. at 5). However, Plaintiff posits that the ALJ's Step Three findings are still erroneous under SSR 17-2p for the reasons set forth by the Court—that the ALJ's Steps Four and Five findings in the instant case are insufficient to show that the ALJ's Step Three findings were supported by substantial evidence. (Id. at 2-4.)
The Federal Rules of Civil Procedure do not explicitly authorize a motion for reconsideration for final judgments or interlocutory orders. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); Mantooth v. Bavaria Inn Rest., Inc., 360 F. Supp. 3d 1164, 1169 (D. Colo. 2019). However, regarding a final judgment, the Rules allow a litigant who was subject to an adverse judgment to file a motion to change the judgment pursuant to Rule 59(e) or a motion seeking relief from the judgment pursuant to Rule 60(b). Van Skiver, 952 F.2d at 1243.
There are three major grounds justifying reconsideration of an order: "(1) an intervening change in the controlling law, (2) new evidence [that was] previously unavailable, [or] (3) the need to correct clear error or prevent manifest injustice." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Concomitantly, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law, but such motions are "inappropriate vehicles to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion." Servants of the Paraclete, 204 F.3d at 1012 (citing Van Skiver, 952 F.2d at 1243).
In 2017, the Social Security Administration ("SSA") provided notice of SSR 17-2p, which became effective on March 27, 2017. SSR 17-2p, 2017 WL 3928306, at *1 (Mar. 27, 2017). SSR 17-2p "provides guidance about how adjudicators at the hearing and Appeals Council (AC) levels of the administrative review process make findings about medical equivalence in disability claims under titles II and XVI of the Social Security Act." Id. SSR 17-2p rescinds SSR 96-6p, which, pertinent to the instant case, eliminated the requirement for ALJs to obtain a medical opinion on the medical equivalency issue at step 3. Id. at *4. Additionally, ALJs need not articulate specific findings as to why medical equivalency is not met because "[a]n adjudicator's articulation of the reason(s) why the individual is or is not disabled at a later step in thesequential process will provide rationale that is sufficient for a subsequent reviewer or court to determine the basis for the finding about medical equivalence at step 3." Id.
When SSR 17-2p was implemented, the Office of Hearings and Appeals of the SSA issued HALLEX I-5-3-30, which constitutes "instructions" that "explain why SSA revised its rules regarding the evaluation of medical evidence and when the Office of Disability Adjudication and Review (ODAR) will apply the revised rules." HALLEX I-5-3-30 (S.S.A.), 2017 WL 1362776, at *1. HALLEX I-5-3-30 is replete with inconsistencies and contradictions. On one hand, HALLEX I-5-3-30 provides that "[w]hile some of the revised rules apply in all claims, many of the most significant changes of evaluating evidence will apply only in claims filed on or after March 27, 2017." Id. at *2. To this end, HALLEX I-5-3-30 acknowledges that for "claim(s) filed before March 27, 2017, adjudicators must use the prior rules throughout the entire appeals process." Id. at *5 (emphasis added). On the other hand, HALLEX I-5-3-30 provides that "[w]hile the prior rules are similar to the regulations as they existed before March 27, 2017, the agency made some changes," including the rescission of SSR 96-6p. Id. Furthermore, HALLEX I-5-3-30 directs ALJs that "[f]or claim(s) filed before March 27, 2017, [ALJs should] cite the following authorities instead of the four rescinded SSRs: . . . SSR 17-2p." Id.
Unsurprisingly, federal district courts are split as to whether ALJs should apply SSR 96-6p or 17-2p to social security claims filed before March 27, 2017. Some courts rely on HALLEX I-5-3-30's statement that the "prior rules" should apply to claims filed before March 27, 2017, and hold that SSR 96-6p applies to claims filed before March 27, 2017. See Atchley v. Berryhill, No. CIV 15-5081-JLV, 2018 WL 1135457, at *5(D.S.D. Feb. 28, 2018) (Viken, C.J.); Heffner v. Comm'r, No. 2:16-cv-820-TMC-MGB, 2017 WL 9292242, at *9 n.14 (D.S.C. Aug. 3, 2017) (); Foy v. Berryhill, No. CBD-17-2743, 2018 WL 3707837, at *6 (D. Md. Aug. 3, 2018); O'Brien v. Comm'r, No. 18-11546, 2019 WL 5162859, at *13 (E.D. Mich. Oct. 15, 2019) (). Other courts hold that SSR 17-2p governs claims that were filed before March 27, 2017, but decided after that date, because HALLEX I-5-3-30 directs ALJs to cite SSR 17-2p, not SSR 96-6p, and indicates that "prior rules" include the new regulations because the new regulations incorporate policies from the "prior rules." See Thomas o/b/o C.T. v. Berryhill, No. 18-2467-TLP-tmp, 2019 WL 7580293, at *8-9 (W.D. Tenn. Nov. 7, 2019); Balknight v. Comm'r, No 18-11843, 2019 WL 4011843, at *26 (E.D. Mich. July 31, 2019); Rhiana J. v. Saul, No. 1:18-cv-03147-JRS-MPB, 2019 WL 4183974, at *5-6, n.7 (S.D. Ind. Sept. 4, 2019); Richardson v. Saul, No. 2:18-00468-N, 2020 WL 1276102, at *7, 8 n.13 (S.D. Ala. Mar. 17, 2020).
HALLEX I-5-3-30 can certainly be read to support that either SSR 96-6p or SSR 17-2p applies to social security claims filed before March 27, 2017. Although both parties contend that SSR 17-2p applies to the instant case, the Court disagrees. Several sections of HALLEX I-5-3-30 intimate that the prior rules, including SSR 96-6p, apply to claims filed before March 27, 2017. First, HALLEX 1-5-3-30 indicates that the "SSA will apply most of these revisions only in claims filed on or after March 27, 2017." 2017 WL 1362776, at *2. Next, Section IV provides that "many of the most significantchanges for evaluating evidence will apply only to claims filed on or after March 27, 2017." Id. That SSR 17-2p eliminated SSR 96-6p's requirement to obtain a State medical expert opinion on the issue of medical equivalency certainly constitutes a "significant...
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