The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge
Memorandum, Decision and Order
Presently before the court is a motion by defendant Commissioner of Social Security ("Commissioner") pursuant to Federal Rule of Civil Procedure 59(e) seeking an amendment of this court's August 10, 2007 Order and Judgment, insofar as it remanded the case to the Administrative Law Judge ("ALJ") for further findings regarding step five of the sequential evaluation process. Plaintiff, Robert Daley ("Daley" or "Plaintiff") opposes. Also before the court is a motion by Plaintiff for attorney's fees. Defendant did not respond to this motion. Both motions are decided on the papers submitted, without oral argument.
After timely filing this civil action challenging the Commissioner's finding that is not disabled, Daley filed a motion for judgment on the pleadings, and the Commissioner cross filed. Daley essentially opposed the ALJ's conclusion, at step five of the sequential evaluation process, that he retains the capacity to perform jobs existing in significant numbers in the national economy. Specifically, as it relates to the present motion, Daley argued that the ALJ improperly relied on testimony of a vocational expert.
Vocational expert Julie Andrews testified at a hearing before the ALJ that Daley is capable of performing the necessary functions of a position in "small product assembly", and of the position of "preparer". Tr. 129-131. On examination by Daley's counsel, Ms. Andrews agreed that she did not consider either exhibit 12F (psychiatric review technique form) nor exhibit 13F (mental residual functional capacity assessment) both conducted by Michelle Marks, Ph. D, a state agency psychologist. Tr. 132. A checked box on the psychiatric review form reveals that Daley often has deficiencies in maintaining concentration, persistence or pace. Tr. 388. A checked box on the mental residual functional capacity ("MRFC") assessment form reveals that Daley is moderately limited in the ability to maintain attention and concentration for extended periods. Tr. 392. Ms. Andrews testified that both of the aforementioned limitations would impact her opinion as to whether Daley could perform the positions of preparer or small product assembler, and that in fact, said limitations would eliminate those positions, and any others, as possible positions for Daley to perform. Tr. 132-33.
Daley argued that the ALJ erred at step five of the sequential evaluation process when he improperly considered the opinion of Ms. Andrews to conclude that Daley retains the capacity to perform jobs existing in significant numbers in the national economy. The court noted that the ALJ failed to address Ms. Andrews's testimony that she would have reached a different conclusion had she considered certain information in the psychiatric review or the MRFC assessment conducted by Dr. Marks. Considering the burden falls on the Commissioner at step five to establish that there is other gainful work in the national economy which the claimant can perform, see Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998), and that "[a]n ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision[,]" Gravel v. Barnhart, 360 F.Supp.2d 442, 444-445 (N.D.N.Y. 2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)), the court remanded this case to the Commissioner for further findings with respect to Daley's residual functional capacity ("RFC") such that the court may be able to determine whether substantial evidence supports the conclusion that Daley retains the RFC to perform jobs existing in significant numbers in the national economy, and that therefore he is not disabled within the meaning of the Social Security Act.
The Commissioner timely filed a Rule 59(e) motion to amend judgment, arguing that the specific information at issue in the psychiatric review and the MRFC assessment, regarding which Ms. Andrews testified at the hearing before the ALJ, does not constitute opinion evidence relating to a claimant's RFC, and therefore, the ALJ is not required to consider same. Daley argues that to reach the conclusion suggested by the Commissioner would be to "deny the claimant a full and fair complete evaluation of the medical evidence." Pl.'s Resp. to Mot., at 2, Dkt. No. 17. Upon review of the arguments of both parties as well as the relevant law regarding the motion to amend judgment, the court declines to alter or amend its earlier decision, and therefore denies Defendant's motion. In addition, the court grants Plaintiff's motion for attorney's fees under the Equal Access to Justice Act. See 28 U.S.C. §2412(d).
It is well settled that when making a motion to alter or amend judgment pursuant to Rule 59(e), the moving party must show that the Court overlooked the controlling decisions or factual matters that were put before the Court in the underlying motion. See Nakano v. Jamie Sadock, Inc., No. 98 Civ. 0515, 2000 WL 1010825, at *1 (S.D.N.Y. July 20, 2000); Walsh v. McGee, 918 F.Supp. 107, 110 (S.D.N.Y.1996). However, in addition, '[a] court is justified in reconsidering its previous ruling if:
(1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice. Nnebe v. Daus, No. 06 Civ. 4991, 2006 WL 2309588, at *1 (S.D.N.Y. Aug. 7, 2006). New evidence, for these purposes, must be evidence that 'could not have been found by due diligence.' Word v. Croce, No. 01 Civ. 9614, 2004 WL 434038, at *4 (S.D.N.Y. March 9, 2004).
Constellation Brands, Inc. v. Arbor Hill Associates, Inc., No. 02-CV-6498, 2008 WL 723784, at *2 (W.D.N.Y. Mar. 14, 2008). Here, the issues before the court in the present motion were not brought to the court's attention before it decided the underlying motions for judgment on the pleadings. The Commissioner, having filed his brief in support of his Rule 12(c) motion a full six weeks after Daley filed his brief, was well aware of Daley's argument that the ALJ erred in accepting Ms. Andrews's conclusion regarding Daley's RFC despite her testimony that had she considered certain information in the psychiatric review or the MRFC assessment forms, her conclusion would have been different. The court may, however, grant the Commissioner's motion in order "to remedy a clear error of law or prevent obvious injustice," id. (quoting Nnebe, 2006 WL 2309588, at *1), which is apparently the basis upon which the Commissioner seeks relief.
The Commissioner now brings to the court's attention several administrative publications which shed light on the manner in which the ALJ was directed to review the MRFC assessment and the psychiatric review forms. First, the Commissioner argues that the check box notations, regarding which Ms. Andrews testified, are not opinion evidence, and therefore the ALJ was not required to consider them in making a determination about Daley's RFC.
Specifically, according to the Commissioner, the limitations identified by the psychiatric review form, SSA-2506-BK, are not an RFC assessment, but are used to assess, at steps two and three of the sequential evaluation process, the severity of a claimant's impairment and whether or not it meets a listing, respectively. See Commissioner's Brief in Supp. of Rule 59(e) Mot. at 3, citing Social Security Ruling ("SSR") 96-8p; Program Operations Manual System ("POMS") DI 24510.006.[C].4. Similarly, the Commissioner notes, the check box notations included in Section I of the MRFC assessment form, SSA-4734-F4-SUP, are "merely a worksheet to aid in deciding the presence and degree of functional limitations and the adequacy of documentation and does not constitute the RFC assessment." See Commissioner's ...