United States District Court, S.D. New York
June 15, 2005.
JACQUELYN BROWN, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
MEMORANDUM OPINION AND ORDER
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.
I. STANDARD OF REVIEW
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(unpublished).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).