UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
January 16, 2006
PHYLLIS R. BRILLER, PLAINTIFF,
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Sweet, D.J.,
Plaintiff pro se Phyllis R. Briller ("Briller") has moved pursuant to Fed. R. Civ. P. 60(b) for reconsideration of the opinion of this court entered October 4, 2005 (the "October 4 Opinion"), familiarity with which is assumed. For the reasons set forth below, Briller's motion is denied.
Briller filed her complaint on May 13, 2004 challenging the decision of the Commissioner that she was not entitled to widow's insurance benefits prior to October 2000.
Briller by her reply to the answer of the Commissioner sought summary judgment, pursuant to Rule 56, Fed. R. Civ. P. The defendant Jo Anne Barnhart, Commissioner of Social Security, cross-moved for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P. Briller's motion and the cross-motion of the Commissioner for judgment on the pleadings were marked fully submitted on March 31, 2005.
The October 4 Opinion denied Briller's motion for summary judgment and granted the Commissioner's cross-motion for judgment on the pleadings. On October 18, 2005 Briller filed the instant motion for reconsideration, which was marked fully submitted on November 23, 2005.
The Reconsideration Standard
Rule 60(b)*fn1 allows the district court to relieve a party from the operation of a final judgment, order, or proceeding:
On motion and upon such terms as are just . . . for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged . . . or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Fed. R. Civ. P. 60(b).
"A motion under Rule 60(b) is addressed to the sound discretion of the trial court." Velez v. Vassallo, 203 F. Supp. 2d 312, 333 (S.D.N.Y. 2002) (citing Mendell on Behalf of Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990)). Nonetheless, the Second Circuit has cautioned that Rule 60(b) provides "extraordinary judicial relief" to be granted "only upon a showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); see also Employers Mut. Cas. Co. v. Key Pharm., 75 F.3d 815, 824-25 (2d Cir. 1996) ("A movant under Rule 60(b) must demonstrate 'exceptional circumstances' justifying the extraordinary relief requested."). In evaluating a Rule 60(b) motion, the courts of this circuit also require that the evidence in support of the motion be highly convincing, that the movant show good cause for the failure to act sooner, and that no undue hardship be imposed on the other parties as a result. See, e.g., Kotlicky v. U.S. Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987); Williams v. New York City Dep't of Corr., 219 F.R.D. 78, 84 (S.D.N.Y. 2003). A Rule 60(b) motion cannot serve as a substitute for an appeal. Competex, S.A. v. Labow, 783 F.2d 333, 335 (2d Cir. 1986); Bennett v. Watson Wyatt & Co., 156 F. Supp. 2d 270, 273 (S.D.N.Y. 2001).
Briller seeks reconsideration on the grounds that the October 4 Opinion allegedly failed to reference her reply memorandum in support of her motion for summary judgment and the contentions contained therein. Specifically, Briller contends that: (1) the SSA failed to follow its own emergency instructions, EM-99147; (2) the Commissioner misapplied regulation 20 C.F.R. § 404.1575(a) in evaluating whether plaintiff engaged in substantial gainful activity; (3) the Administrative Law Judge (the "ALJ") erred in his evaluation of medical evidence; and (4) the ALJ erred in considering rental income in determining that she was engaged in substantial gainful activity.
Construing Briller's motion for reconsideration as raising the strongest argument that it suggests in light of her pro se status, see, e.g., Olle v. Columbia Univ., 332 F. Supp. 2d 599, 607 (S.D.N.Y. 2004), there is no basis upon which to grant reconsideration of the October 4 Opinion. Briller has not presented new evidence to warrant reconsideration under Rule 60(b)(2); nor do her arguments amount to the type of "exceptional circumstances" that call for relief pursuant to Rule 60(b)(6)'s catch-all.
With respect to Briller's first argument, the introduction of Operating Procedure EM-99147 fails to meet the requirements for newly discovered evidence under Rule 60(b)(2).
"In order to vacate a judgment under Rule 60(b)(2), a movant must: (i) submit newly discovered evidence of facts existing at the time of the original judgment; (ii) show that the moving party was excusably ignorant of the facts at the time of the original judgment, despite using due diligence to learn about those facts; (iii) show that the newly discovered evidence is admissible and probably effective to change the result of the previous ruling; and (iv) show that the newly discovered evidence is not merely cumulative or impeaching of evidence already offered." Ross v. Global Bus. Sch., Inc., 99 Civ. 2826, 2002 U.S. Dist. LEXIS 20941, at *3-4 (S.D.N.Y. Oct. 30, 2002).
There is no indication that EM-99147 was not available to Briller at the time that she filed her motion papers. Moreover, even if Briller had cited this procedure in her motion for summary judgment and opposition to the Commissioner's cross-motion for judgment on the pleadings, there is substantial evidence to suggest that the SSA complied with this policy instruction. Briller's suggestion that she was denied due process because she was unable to challenge the portion of the December 29, 2000, which determined that she was not disabled at any time through September 2000, is without merit. On June 3, 2003, the Appeals Council remanded plaintiff's claim for the period prior to October 1, 2000 to an ALJ for a new hearing. This hearing was held on August 13, 2002, and a decision was rendered on October 29, 2003.
As to the remaining three arguments put forth in support of this motion for reconsideration, the Court addressed each of plaintiff's arguments in the October 4 Opinion. Additionally, plaintiff has presented no matters or controlling decisions that the Court overlooked with respect to these arguments.
With respect to whether the Commissioner misapplied regulation 20 C.F.R. § 404.1575(a) in evaluating whether plaintiff engaged in substantial gainful activity, Briller's motion for reconsideration itself refers to instances in her summary judgment papers that raised these very arguments. These arguments were considered in the October 4 Opinion, which determined that there was substantial evidence to support the Commissioner's finding of substantial gainful activity under test three of § 404.1575(a).
Briller's argument that the ALJ erred in failing to properly evaluate medical evidence in determining whether Briller met the standard for statutory blindness fails based on the same grounds. Briller urged this Court to consider the same argument in her summary judgment papers, and she has not introduced any new authority or extraordinary circumstances warranting renewed review.
Finally, with respect to whether the ALJ properly considered rental income Briller received in determining that she was performing substantial gainful activity, Briller's arguments are virtually identical to those raised previously and addressed by this Court in the October 4 Opinion. Plaintiff has raised no matters or controlling decisions that were overlooked by the Court. Nor has plaintiff shown any extraordinary circumstances justifying relief under Rule 60(b)(6)'s catch-all.
In light of the foregoing, Plaintiff's motion for reconsideration is denied.
It is so ordered.
ROBERT W. SWEET U.S.D.J.