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United States District Court, S.D. New York

June 15, 2005.

JO ANNE BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Plaintiff moves this Court to reconsider an earlier Opinion and Order granting the Commissioner's motion for judgment on the pleadings. See Brown v. Barnhart, No. 04 Civ. 2450, 2005 WL 991769, at *8 (S.D.N.Y. Apr. 27, 2005) ("Brown I") (finding the Commissioner's conclusion that Brown has the residual functional capacity to perform her past jobs as an office clerk and accounts clerk to be supported by substantial evidence). According to plaintiff, reconsideration is appropriate because: (1) this Court improperly extended the holding of Berry v. Schweiker, 675 F.2d 464 (2d Cir. 1982); and (2) the Administrative Law Judge ("ALJ") failed to consider Brown's good work history when assessing her credibility. See Memorandum of Law in Support of Plaintiff's Motion for Reargument and Reconsideration at 1. I have also reviewed Defendant's Memorandum in Opposition to Plaintiff's Motion for Reargument and Reconsideration and plaintiff's Reply Memorandum of Law in Support of Plaintiff's Motion for Reargument and Reconsideration. For the following reasons, plaintiff's motion is denied.


  Motions for reconsideration are governed by Local Civil Rule 6.3 and are committed to the sound discretion of the district court. See AT&T Corp. v. Microsoft, No. 01 Civ. 4872, 2004 WL 309150, at *1 (S.D.N.Y. Feb. 19, 2004). Under Local Civil Rule 6.3, "the moving party must demonstrate controlling law or factual matters put before the court on the underlying motion that the movant believes the court overlooked and that might reasonably be expected to alter the court's decision." Montanile v. National Broad. Co., 216 F. Supp. 2d 341, 342 (S.D.N.Y. 2002), aff'd, 2003 WL 328825 (2d Cir. Feb. 13, 2003) (unpublished). See also Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Reconsideration is an "extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." In re Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (internal quotation marks and citation omitted). Rule 6.3 is "narrowly construed and strictly applied" in order to avoid repetitive arguments already considered by the Court. Greenes v. Vijax Fuel Corp., N. 02 Civ. 450, 2004 WL 1516804, at *1 (S.D.N.Y. July 7, 2004). A motion for reconsideration is not a substitute for appeal. See RMED Int'l, Inc. v. Sloan's Supermarkets, Inc., 207 F.Supp.2d 292, 296 (S.D.N.Y. 2002). Nor is it "a `second bite at the apple' for a party dissatisfied with a court's ruling." Pannonia Farms, Inc. v. USA Cable, No. 03 Civ. 7841, 2004 WL 1794504, at *2 (S.D.N.Y. Aug. 10, 2004). Accordingly, the moving party may not "advance new facts, issues or arguments not previously presented to the Court." Morse/Diesel, Inc. v. Fidelity and Deposit Co. of Maryland, 768 F. Supp. 115, 116 (S.D.N.Y. 1991).


  In her Memorandum of Law in Support of Plaintiff's Cross-Motion for Judgment on the Pleadings ("Pl. Mem."), plaintiff argued that where an ALJ has improperly rejected a claimant's subjective testimony of disability, and the claimant would be found disabled if that testimony were credited, then that testimony should be credited as a matter of law. See Pl. Mem. at 19-20. Plaintiff previously argued that the ALJ's finding in her case "should be overturned because the ALJ failed to provide any analysis of Brown's subjective complaints of environmental sensitivity that prevented her from going outside."*fn1 Brown I at *6. I declined to do so, stating that "when the evidence of record permits a court to comprehend the rationale of an ALJ's decision, it is not necessary that the ALJ has `mentioned every item of testimony presented to him or [has] explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.'" Brown I at *6 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)) (citing Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982)).

  Plaintiff proffers two reasons why reconsideration should be granted. First, plaintiff claims that this Court's reliance on Berry was in error as the Berry court cautioned that a reviewing courts's capacity to make "reasonable inferences" from an ALJ's decision is a limited one. The Berry court also explicitly identified credibility analysis as a type of finding that requires a "clear" explanation from the ALJ.


Cases may arise, however, in which we would be unable to fathom the ALJ's rationale in relation to evidence in the record, especially where credibility determinations and inference drawing is required of the ALJ. In such instances, we would not hesitate to remand the case for further findings or a clearer explanation for the decision.
Berry, 675 F.2d at 469. Second, plaintiff also claims that the ALJ erred in not taking into account her past work record in assessing her credibility. See Memorandum of Law in Support of Plaintiff's Motion for Reargument and Reconsideration at 3 (citing Second Circuit authority for the proposition that an ALJ must take into account a claimant's good work record when assessing a claimant's credibility)

  Assuming, arguendo, that the Court overlooked controlling law or factual matters, plaintiff must also show that these oversights might reasonably be expected to alter the court's decision. It is this second requirement that proves fatal to plaintiff's motion for reconsideration given my finding of harmless error on the part of the ALJ with respect to plaintiff's subjective complaints of disability. Even if the omission of the ALJ is an error, this error is harmless and does not justify a remand because there are little or no objective findings that demonstrate a medical impairment which could reasonably be expected to produce the symptoms alleged. No evidence shows that Brown was subjected to frequent allergic attacks when she went out or visited her friends except her subjective concern that she would become allergic if she did so. The reported attacks of allergies after Brown retired were rare, at best. The report of Dr. Hermance, the only physician mentioned by Brown who treated her after her retirement, did not reveal any occasions where Brown suffered a severe allergic attack simply because she went outside or visited her friends.

 Brown I at *7. If my determination was erroneous, that is a decision to be made by the appellate court, not by the district court on reconsideration.


  For the foregoing reasons, plaintiff's motion for reconsideration is denied. The Clerk of the Court is directed to close this motion (Document #22).


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