Scordino v. Comm'r of Soc. Sec.

• Decision Date: 25 March 2019
• Docket Number: 2:17-cv-4620 (ADS)
• Parties: DAWN M. SCORDINO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Eastern District of New York

DAWN M. SCORDINO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

2:17-cv-4620 (ADS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 25, 2019

MEMORANDUM OF DECISION & ORDER

APPEARANCES:

The DeHaan Law Firm P.C.

Counsel for the Plaintiff

300 Rabro Drive East

Hauppauge, NY 11788

By: John W. DeHaan, Esq., Of Counsel

United States Attorney's Office for the Eastern District of New York

Attorneys for the Defendant

271 Cadman Plaza East

Brooklyn, NY 11201

By: Mary M. Dickman, Special Assistant United States Attorney

SPATT, District Judge.

The Court assumes the parties' familiarity with the facts and procedural history of this action. Additional detail that is relevant to the instant motion is provided below. Presently before the Court is a motion for reconsideration of this Court's December 19, 2018 Order (the "Order") denying the Commissioner of Social Security (the "Defendant" or the "Commissioner") a fifth request for an extension of time to file papers in this appeal pursuant to the Social Security Act, 42 U.S.C. § 405 et seq. (the "Act"). The Commissioner ultimately seeks to respond to the Plaintiff's Motion for Judgment on the Pleadings and cross-move for remand.

On February 26, 2018, the Plaintiff filed her Motion for Judgment on the Pleadings. Since then, the Court granted four requests to extend the deadline to allow the Defendant to file its reply papers and cross-motion. On September 22, 2018, the Court granted the Defendant's fourth request for an extension of time, noting "[t]he Court will not accept any further requests for extensions to the briefing schedule." The Defendant was given until October 19, 2018 to file its response and cross-motion. Despite the revised, court-ordered briefing schedule, the Defendant again failed to file its response and cross-motion.

On December 18, 2018, almost two months after the revised deadline, the Defendant filed the letter motion at-issue, requesting a fifth extension of time. According to the letter, this request was due to exigencies in other matters as well as the voluminous record. The following day, December 19, 2018, the Court issued the Order, which denied the Commissioner's request for an extension of time and deemed the Plaintiff's motion fully-briefed and unopposed.

On December 20, 2018, the Commissioner filed the instant motion for reconsideration pursuant to Local Rule 6.3.

I. DISCUSSION

A. STANDARD OF REVIEW: MOTION FOR RECONSIDERATION

A motion for reconsideration is governed Local Rule 6.3. See Hertzner v. Henderson, 292 F.3d 302, 303 (2d Cir. 2002). Local Rule 6.3 provides that:

Unless otherwise provided by the Court or by statute or rule (such as FED. R. CIV. P. 50, 52, and 59), a notice of motion for reconsideration or reargument of a court order determining a motion shall be served within fourteen (14) days after the entry of the Court's determination of the original motion, or in the case of a court order resulting in a judgment, within fourteen (14) days after the entry of the judgment.

There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the Court has overlooked. The time periods for the service of answering and reply memoranda, if any, shall be governed by Local Civil Rule 6.1(a) or (b), as in the case of the original motion. No oral argument shall be heard unless the Court directs that the matter shall be reargued orally. No affidavits shall be filed by any party unless directed by the Court.

Id. The decision to grant or deny a motion for reconsideration is "committed to the sound discretion of the district court." Wilder v. News Corp., No. 11-cv-4947, 2016 WL 5231819, at *3 (S.D.N.Y. Sept. 21, 2016) (internal citations omitted); accord Devlin v. Transp. Commc'n Int'l Union, 175 F.3d 121, 132 (2d Cir. 1999) (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)); Mangino v. Vill. of Patchogue, 814 F. Supp. 2d 242, 247 (E.D.N.Y. 2011); T.Z. v. City of N.Y., 634 F.Supp.2d 263, 268 (E.D.N.Y.2009).

In the Second Circuit, there are only three grounds which may be used to grant a motion for reconsideration: (1) a subsequent change in the law; (2) the availability of new evidence; or (3) the need to correct a clear error or prevent manifest injustice. Frey v. Bekins Van Lines, Inc., No. CV 09-5430, 2012 WL 2701642, at *1 (E.D.N.Y. July 5, 2012) (citing Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)); accord Luv n' Care Ltd. v. Goldberg Cohen, LLP, No. 15-cv-9248, 2016 WL 6820745, at *1 (S.D.N.Y. Nov. 10, 2016) (quoting Hollander v. Members of the Bd. of Regents, 524 F. App'x 727, 729 (2d Cir. 2013) (summary order)).

"The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also T.Z., 634 F. Supp. 2d at 267-68. "[A] party may not advance facts, issues[,] or arguments notpreviously presented to the Court on a motion for reconsideration." Steinberg v. Elkman, No. 15-cv-278, 2016 WL 1604764, at *1 (S.D.N.Y. Apr. 6, 2016) (quoting Nat'l Union Fire Ins. Co. of Pittsburgh v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001)); O'Brien v. Bd. of Educ. of Deer Park Union Free Sch. Dist., 127 F. Supp. 2d 342, 345 (E.D.N.Y. 2001).

A motion for reconsideration is "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." T.Z., 634 F.Supp.2d at 268 (internal citations omitted); Dellefave v. Access Temps., Inc., No. 99-cv-6098, 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001) (same). "An attempt to simply relitigate an issue that was already decided will not be granted reconsideration." In re Zyprexa Prods. Liab. Litig., 653 F. Supp. 2d 181, 182 (E.D.N.Y. 2009) (citing Wall v. Constr. & Gen. Laborers' Union, No. 06-1264-cv, 2009 WL 230122, at *1 (2d Cir. Feb. 2, 2009) (summary order)).

B. STANDARD OF REVIEW: SOCIAL SECURITY APPEAL

The Act defines the term "disability" to mean an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). A person may only be disabled if his "impairments are of such severity that he is not only unable to do his previous work[,] but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).

In determining whether a person is disabled, the Commissioner is required to apply the five-step sequential process promulgated by the Social Security Administration, set forth in 20 C.F.R. § 404.1520. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). The Plaintiff bears the burden of proving the first four steps, but then the burden shifts to the Commissioner at the fifthstep to prove that the Plaintiff is capable of working. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009); Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008); Rosa, 168 F.3d at 77. See also Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) ("If the claimant satisfies her burden of proving the requirements in the first four steps, the burden then shifts to the [Commissioner] to prove in the fifth step that the claimant is capable of working."). "If at any step a finding of disability or non-disability can be made, the [Social Security Administration] will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24, 124 S. Ct. 376, 379, 157 L. Ed. 2d 333 (2003).

Under the five-step sequential evaluation process, the decision-maker decides:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a "residual functional capacity" assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); 20 C.F.R. §§ 404.1520, 416.920. When conducting this analysis, the ALJ must consider the objective medical facts, the diagnoses or medical opinions based on these facts, the subjective evidence of pain and disability, as well as the plaintiff's age, background, education and work experience. Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).

"Judicial review of the denial of disability benefits is narrow" and "[t]he Court will set aside the Commissioner's conclusions only if they are not supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Koffsky v. Apfel, 26 F. Supp. 2d 475, 478 (E.D.N.Y. 1998) (Spatt, J.) (citing Bubnis v. Apfel, 150 F.3d 177, 179-81 (2d Cir. 1998));accord Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)); 42 U.S.C. § 405(g). See also Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder."). The ALJ is required to set forth those crucial factors used to justify his or her findings with sufficient particularity to allow the district court...