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March 2, 2004.

CHARISSE GRUBB, Plaintiff -against- JO ANNE BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge


By motion dated January 16, 2004, Defendant, the Commissioner of Social Security ("Commissioner"), moves pursuant to Fed.R.Civ.P. 59(e) to alter or amend the judgement entered on January 2, 2004 remanding this action to the Commissioner solely for calculation of benefits. For the following reasons, her motion is denied. Page 2


  Charisse Grubb filed an application for Supplemental Security Income ("SSI") benefits in September 9, 1993, with a protective filing date of August 4, 1993. (Rec. at 31-33.)*fn1 This application was originally heard by ALJ Louis V. Zamora on December 6, 1994 and denied in an opinion issued April 26, 1995. (Id. at 12-15.) By order dated July 14, 1995, the SSA Appeals Council denied any further review. (Id. at 2-3.) Plaintiff appealed to this court. On January 27, 1998, Judge Baer found the "ALJ's determination that the plaintiff had the residual functional capacity to perform sedentary work was not supported by substantial evidence" and remanded for calculation of benefits. Grubb v. Chater, 992 F. Supp. 634, 640 (S.D.N.Y. 1998). The Commissioner moved for reconsideration based on a finding that the report of Fredrick Newsome, M.D., relied on in Grubb v. Chater, had been altered. Grubb v. Apfel, 1998 U.S. Dist. LEXIS 2770, at *2-3 (S.D.N.Y., Mar. 10, 1998). Judge Baer then remanded for further proceedings with the proviso that all tasks and findings "must be accomplished within 30 days or less" with any cause for delay being communicated to the Court. Id. at *4.

  In an opinion dated April 9, 1998, ALJ Robin J. Arzt determined "the evidence of record is adequate to reach a conclusion regarding the claimant's disability and . . . no further evidence is required in this case" and denied the application. (Rec. at 138-149.) On September 22, 1998, plaintiff appealed the decision to this court. On December 22, 2003, the Court issued its decision remanding the case to the Commissioner for 2003 U.S. Dist. LEXIS 22938, at *3-4 (S.D.N.Y., Dec. 22, 2003). Judgment was entered on January 2, 2004. On January 16, 2004, the Commissioner moved to alter or amend the judgment remanding the case to the Commissioner, pursuant to rule 59(c) of the Federal Rules of Civil Page 3 Procedure. (Def.'s Mem. of Law, dated Jan. 16 ("Def. Mem."), at 1) The commissioner designated her motion as a motion for reconsideration. (Id.)


  Generally, a motions for reconsideration should not be granted 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." Key Mechanical Inc. v. BDC 56, LLC, 330 F.3d 111, 123 (2d Cir. 2003) (citations omitted). The District Court is justified in reconsidering its previous ruling if there is intervening change in controlling law, new evidence not previously available comes to light, or it becomes necessary to remedy clear error of law or to prevent obvious injustice. Marino v. United States, 1998 U.S. Dist. LEXIS 12687, at *7 (S.D.N.Y., Aug. 13, 1998). Nonetheless, "[s]uch motions must be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court." Zoll v. Ruder Finn, Inc., 2004 U.S. Dist. LEXIS 144, at *3-4 (S.D.N.Y., Jan. 7, 2004) (citations omitted). A movant may not "`advance new facts, issues or arguments not previously presented to the Court,' or `reargue those issues already considered." Horvath v. Deutsche Lufthansa, AG, 2004 U.S. Dist. LEXIS 1733, at *6 (S.D.N. Y., Feb. 9, 2004) (citations omitted); see also Charles A. Wright, Arthur R. Miller and Richard L. Marcus, Federal Practice & Procedure § 2810.1 (2d ed. 1995) ("The Rule 59(e) motion [for reconsideration] may not be used to relitigate old matters, or raise arguments . . . that could have been raised prior to the entry of judgment."). This strict standard seeks to discourage litigants from making repetitive arguments on issues that already have been considered by the Court or from offering new arguments on a motion the Court has already decided. Hayles v. Advanced Travel Mgmt. Corp., 2004 U.S. Dist. LEXIS 865, at *3 (S.D.N.Y., January 26, 2004). Page 4


  The Commissioner makes two main points in her brief. The Commissioner first argues that the court overlooked evidence that ALJ properly applies the sequential evaluation. (Def. i Mem. at 1.) Defendant contends that the issue of claimant's noncompliance was not outcome determinative in the ALJ's decision and that therefore SSR 82-59 was not triggered. (Id. at 6.) This position is in conflict with her original motion papers. There, the Commissioner argued that based on the record before the ALJ, "plaintiff's failure to comply with prescribed treatment resulted in a finding that she was not disabled." (Def.'s Mem. of Law in Supp. of Comm'r Cross-Mot, for Remand, dated Feb. 10, 2003 ("Def. Mem. for Remand"), at 13-14 ("[P]laintiff was not compliant with her prescribed treatment and, had she done so, was capable of performing the requirements of sedentary work.").) Regardless, the court considered this issue at length in its opinion, providing detailed analysis and concluded that the ALJ improperly considered non-compliance in making a determination of no disability. Grubb v. Apfel, 2003 U.S. Dist. LEXIS 22938 at * 13-25. While the Commissioner may disagree with our reasoning, she has not presented any points overlooked by the Court or any other grounds for granting a motion for reconsideration. See, e.g., Banco de Seguros del Estado v. Mut. Marine Offices, Inc., 230 F. Supp.2d 427, 431 (S.D.N.Y. 2002) (denying motion for reconsideration where movant "reargue[d] the points it made during the initial briefing and . . . explain[ed] to the Court how its analysis Feb. 6, 2004) (denying motion for reconsideration where movant "point[ed] to no facts or law that the Court overlooked in reaching its conclusion, and instead simply reiterate[d] the facts and arguments that the Court already considered and rejected").

  The Commissioner's second argument is that the Court mistakenly found that the ALJ erred in failing to follow Judge Baer's instructions. (Def. Mem. at 8.) The Defendant himself, Page 5 however, admits to error by the ALJ, stating that the "ALJ incorrectly . . . concluded . . . she lacked time to request further records." (Id.) Despite this admission, the Commissioner then urges that further administrative proceedings are needed to resolve the appropriate weight to be given to the opinions of the treating physicians at Soundview. (Id. at 9.) It is unclear what point the Commissioner intends to make in this section. She articulates no error on the part of the Court. Moreover, the facts, cases, and arguments set forth are all the same as previously set forth in Defendant's motion papers (Def. Mem. for Remand at 17-18) and were thoroughly considered in the Court's prior decision. See Grubb v. Apfel, 2003 U.S. Dist. LEXIS 22938 at *11-13, 25-27. As courts have said before, a motion for reconsideration is not an opportunity for "a second bite at the apple." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (citations omitted). The Court has previously evaluated this issue; its findings remain the same.


  For the foregoing reasons, Defendant=s Fed.R.Civ.P. 59(e) motion is denied. As previously ordered, the Clerk of the Court is directed to enter judgment for plaintiff and this matter is hereby remanded to the Commissioner solely for the purpose of the prompt calculation of the benefits to which plaintiff is entitled and payment thereof within thirty days of the filing of this opinion and order.

  IT IS SO ...

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