Wheeler v. Kijakazi, No. 1:2021cv03070 - Document 24 (E.D. Wash. 2023)
Court Description: ORDER DENYING 21 PLAINTIFF'S MOTION TO ALTER JUDGMENT. Case remains CLOSED. Signed by Judge Mary K. Dimke. (LAS, Case Administrator)
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Wheeler v. Kijakazi Doc. 24 Case 1:21-cv-03070-MKD ECF No. 24 filed 01/30/23 PageID.531 Page 1 of 7 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Jan 30, 2023 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 MATTHEW W., 1 8 No. 1:21-cv-03070-MKD Plaintiff, 9 ORDER DENYING PLAINTIFF’S MOTION TO ALTER JUDGMENT v. ECF No. 21 10 11 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. Before the Court is Plaintiff’s motion to alter judgment. ECF No. 25. 13 14 Plaintiff requests the Court alter its Order granting Defendant’s Motion for 15 Summary Judgment. See id. For the reasons discussed below, the Court denies 16 Plaintiff’s motion, ECF No. 25. 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). 2 ORDER DENYING MOTION TO ALTER JUDGMENT - 1 Dockets.Justia.com Case 1:21-cv-03070-MKD 1 2 ECF No. 24 filed 01/30/23 PageID.532 Page 2 of 7 ANALYSIS A district court may reconsider its disposition of a motion for summary 3 judgment pursuant to Federal Rule of Civil Procedure 59(e). Sch. Dist. No. 1J, 4 Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993); Taylor 5 v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989). Rule 59(e) “offers an extraordinary 6 remedy, to be used sparingly in the interests of finality and conservation of judicial 7 resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 8 2000) (quoting 12 JAMES W. MOORE, ET AL., MOORE’S FEDERAL PRACTICE § 9 54.78[1] (3d ed. 2000)). A court may only alter or amend a previous ruling or 10 judgment under Rule 59(e) if: (1) it “is presented with newly discovered 11 evidence”; (2) it “committed clear error or made an initial decision that was 12 manifestly unjust”; or (3) “there is an intervening change in controlling law.” 13 United Nat’l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 14 2009) (quoting Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001)). 15 Plaintiff contends the Court’s Order contains a clear error due to an 16 “improper assessment of any forfeit of challenges of step-5 job numbers issues,” 17 and contends the result was manifestly unjust. ECF No. 21 at 2. This Court found 18 Plaintiff forfeited his challenge to the sufficiency of the job numbers on appeal 19 because Plaintiff did not challenge the job numbers at the hearing and did not raise 20 the issue to the Appeals Council. ECF No. 19 at 15. Plaintiff contends the issue 2 ORDER DENYING MOTION TO ALTER JUDGMENT - 2 Case 1:21-cv-03070-MKD ECF No. 24 filed 01/30/23 PageID.533 Page 3 of 7 1 was not waived because counsel asked a single question at the hearing of the 2 vocational expert: “And your numbers, where did you get those?” ECF No. 21 at 3 5. Plaintiff contends this question meets the standard set forth in Shaibi, as it 4 raised the issue in a general sense and/or obliquely suggested the job numbers may 5 be unreliable. Id. at 4-5; Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017). 6 Defendant notes this Court previously rejected a similar argument, when the 7 Court found the issue was waived when a representative’s only question regarding 8 the job numbers was, “what the source of his job numbers were.” ECF No. 22 at 2 9 (citing Yadira G. v. Saul, No. 4:20-cv-5093-EFS, available at 2020 WL 8340065, 10 at *11 (E.D. Wash. Dec. 16, 2020). Plaintiff contends Yadira is distinguishable 11 and cites to multiple cases from the District of Oregon in which the court found 12 that the job numbers issue was not waived when counsel inquired as to the basis of 13 the numbers. ECF Nos. 21, 23 (citing, e.g., Lisa Marie G. v. Comm’r, Soc. Sec. 14 Admin., 2022 WL 1026731, at *3 (D. Or. Apr. 3, 2022)). 15 The Court in Shaibi reasoned, “It is enough to raise the job-numbers issue in 16 a general sense before the ALJ. A claimant may do so by inquiring as to the 17 evidentiary basis for a VE’s estimated job numbers or inquiring as to whether those 18 numbers are consistent with the CBP, OOH, or other source . . .” Shaibi, 883 F.3d 19 at 1110. However, the Court continued its reasoning, and stated that Plaintiff’s 20 inquiry into the evidentiary basis for the numbers would then ordinarily allow 2 ORDER DENYING MOTION TO ALTER JUDGMENT - 3 Case 1:21-cv-03070-MKD ECF No. 24 filed 01/30/23 PageID.534 Page 4 of 7 1 Plaintiff’s counsel to submit supplemental briefing or interrogatories contrasting 2 the expert’s job estimates with counsel’s own, and if ALJ declined to allow the 3 evidence, counsel could then raise the evidence to the Appeals Council. Id. Like 4 the Plaintiffs in Shaibi and Yadira, Plaintiff here did not submit the evidence to the 5 ALJ after the hearing nor to the Appeals Council that he now asks the Court to 6 consider. As in Meanel, “[t]he ALJ, rather than this Court, was in the optimal 7 position to resolve the conflict between [Plaintiff’s] new evidence and the 8 statistical evidence provided by the VE.” Shaibi, 883 F.3d at 1109 (citing Meanel 9 v. Apfel, 172 F.3d 1111 (9th Cir. 1999). 10 Plaintiff contends the failure to submit the evidence to the ALJ and the 11 Appeals Council is not fatal to his contention that the Court should now consider 12 the newly submitted vocational evidence. ECF No. 23 at 4. However, Plaintiff 13 cites to “permissive and passive language (addressed at the very end of the 14 decision)” in White to support his contention. Id. (citing White v. Kijakazi, 44 15 F.4th 828 (9th Cir. 2022)). In White, the Court was considering whether the 16 Appeals Council erred by failing to credit the significant and probative evidence 17 the Plaintiff submitted to the Appeals Council. White, 44 F.4th at 837. The 18 Appeals Council found Plaintiff had good cause for the late submission of the 19 evidence. Id. The court in White relied on Buck in holding that remand was 20 appropriate to address the evidence. Id. (citing Buck v. Berryhill, 869 F.3d 1040 2 ORDER DENYING MOTION TO ALTER JUDGMENT - 4 Case 1:21-cv-03070-MKD ECF No. 24 filed 01/30/23 PageID.535 Page 5 of 7 1 (9th Cir. 2017)). In Buck, the Plaintiff submitted the vocational evidence to the 2 ALJ. Id. at 1052. Plaintiff also cites to Lisa Marie G., Greg J.A., and Monica H. 3 to support his contention, however, the Plaintiffs in all three of those cases 4 submitted the vocational evidence to the Appeals Council. Lisa Marie G., 2022 5 WL 1026731, at *3; Greg J. A. v. Comm’r Soc. Sec. Admin., No. 6:20-CV-021146 AC, 2022 WL 819814, at *3 (D. Or. Mar. 18, 2022); Monica H. v. Comm’r, Soc. 7 Sec. Admin., No. 6:20-CV-01774-MC, 2022 WL 884727, at *2 (D. Or. Mar. 25, 8 2022). Unlike the Plaintiffs in White, Buck, Lisa Marie G., Greg J.A., and Monica 9 H., Plaintiff did not submit his vocational evidence to the ALJ nor the Appeals 10 Council. Unlike White, there has been no finding that Plaintiff had good cause for 11 failing to submit the evidence at the hearing level. Unlike the Plaintiffs in those 12 cases, Plaintiff in the instant case did not preserve the issue for appeal. 13 Rather, like the Plaintiff in Yadira G., Plaintiff asked a single question of the 14 vocational expert at the hearing, did not submit any vocational evidence to the 15 ALJ, and did not submit any vocational evidence to the Appeals Council. See 16 Yadira G., 2020 WL 8340065 at *11. As this Court held in Yadira, Plaintiff here 17 has waived his argument that his own vocational evidence is contrary to the 18 expert’s testimony. See id. Plaintiff has failed to demonstrate this Court clearly 19 erred. 20 2 ORDER DENYING MOTION TO ALTER JUDGMENT - 5 Case 1:21-cv-03070-MKD 1 ECF No. 24 filed 01/30/23 PageID.536 Page 6 of 7 Further, Plaintiff has failed to demonstrate the decision was manifestly 2 unjust. Defendant raised multiple arguments for the Court to reject Plaintiff’s step 3 five argument. See ECF No. 17 at 15-18. While Plaintiff contends he is 4 functionally illiterate and the ALJ erred in failing to account for the limitation in 5 the RFC, this Court found the ALJ did not err. ECF No. 19 at 14. As such, the 6 ALJ found Plaintiff can perform three representative occupations that are 7 consistent with the RFC, and the total number of jobs even using Plaintiff’s 8 numbers is 53,478, which is a sufficient number of jobs. See ECF No. 16-1; see 9 also Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d 519, 528-29 (9th Cir. 10 2014). Therefore, even if the Court had considered Plaintiff’s argument, the Court 11 would have rejected the argument and come to the same conclusion, thus the 12 decision was not manifestly unjust. 13 14 CONCLUSION Plaintiff has not provided an adequate basis to show the Court’s ruling was 15 based on any clear error in applying the law nor that the initial decision was 16 manifestly unjust. Plaintiff presents no argument that there is newly discovered 17 evidence nor that there is an intervening change in the controlling law. As such, 18 his motion to alter the judgment is denied. 19 Accordingly, IT IS HEREBY ORDERED: 20 1. Plaintiff’s Motion to Alter Judgment, ECF No. 21, is DENIED. 2 ORDER DENYING MOTION TO ALTER JUDGMENT - 6 Case 1:21-cv-03070-MKD 1 ECF No. 24 filed 01/30/23 PageID.537 Page 7 of 7 The District Court Executive is directed to file this Order, provide copies to 2 counsel. The file remains CLOSED. 3 4 5 DATED January 30, 2023. s/Mary K. Dimke MARY K. DIMKE UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 ORDER DENYING MOTION TO ALTER JUDGMENT - 7
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