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Newman v. Commissioner of Social Security

United States District Court, D. New Jersey

April 2, 2014

LISA NEWMAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION

KEVIN McNULTY, District Judge.

This matter comes before the court upon the motion of Plaintiff, Lisa Newman (Docket No. 18), for reconsideration of the Court's March 21, 2014 Opinion and Order affirming the Social Security Commissioner's March 21, 2011 final decision denying benefits for the period of November 29, 2006 to November 5, 2009. (Docket Nos. 16, 17). At the time of my decision, I had not been furnished a copy of a February 22, 2012 Notice of Decision by Administrative Law Judge April Wexler. Out of caution, I therefore suggested that I would entertain a motion for reconsideration should anything in that February 2012 decision warrant it. Opinion (Docket No. 16) at 23. Having duly considered Ms. Newman's arguments and the February 2012 Decision, I will deny the motion for reconsideration.

I. BACKGROUND

The factual background of Newman's claim for disability insurance benefits ("DIB") is discussed in detail in my March 21, 2014 Opinion, and I will not recapitulate it in detail here. See Opinion at 1-10. The essential facts are these: Newman filed an application for DIB for a period of disability commencing on November 29, 2006. Compl. ¶ 4 (Docket No. 13) at 2. Newman's application was based on alleged neuropathy in both legs, as well as a mental impairment. Administrative Law Judge ("ALJ") James Andres denied her application in a decision dated November 5, 2009. Record of Proceedings (hereinafter "R ___") (Docket No. 12) at 34-36. The Appeals Council denied Newman's request for appeal on March 21, 2011, and AU Andres' decision became the "final decision" of the Commissioner. R 1-5. I affirmed the final decision of the Commission my Opinion and Order of March 21, 2014.

Following ALJ Andres's denial of her first application, Newman filed a second application for benefits for a period commencing on November 6, 2009.[1] That application was granted and Newman was adjudged disabled by ALJ April M. Wexler on February 22, 2012. When Newman appealed the denial of her first application to this Court, she did not submit a copy of ALJ Wexler's subsequent decision granting her second application. Newman indicated, however, that something about the second disability decision called into question the validity of the first. (Docket No. 13 at 1). In my Opinion denying her appeal, I granted permission for Newman to file a motion for reconsideration based on any "new evidence" contained in ALJ Wexler's decision granting benefits. That motion for reconsideration, and a copy of ALJ Wexler's decision, are now before me. (Docket No. 18).

II. DISCUSSION

A. Standard of Review

Motions for reconsideration are governed by Local Civil Rule 7.1(i), which requires a brief from the movant concisely setting forth the matter or controlling decisions which the movant believes the Judge overlooked. Bowers v. Nat'l Collegiate Athletics Assoc., 130 F.Supp.2d 610, 612 (D.N.J. 2001). The movant has the burden of demonstrating either: (1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice. Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); Beety-Monticelli v. Comm'r of Soc. Sec., 343 F.Appx. 743, 747 (3d Cir. 2009) (non-precedential). Because the requirements are so stringent, motions for reconsideration are often denied; it is "an extraordinary remedy" to be granted "sparingly." A.K. Stamping Co., Inc., v. Instrument Specialties Co., Inc., 106 F.Supp.2d 627, 662 (D.N.J. 2000) (quoting NL Indus., Inc., v. Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J. 1996)).

I do not, however, place great weight on that stringent standard under the peculiar circumstances here. In short, I invited this motion. See Opinion at 22-23. Because ALJ Wexler's motion was not in the record, I instructed Newman that I would entertain a reconsideration motion attaching that second decision should the circumstances warrant. Opinion at 23. Newman proffers that she assumed that ALJ Wexler's decision was part of the SSA Record in this case. (Docket No. 18 at 1). While that is not an overly persuasive explanation, I will nevertheless treat the decision as evidence not previously available and consider whether anything in it would change my decision.

B. New Evidence Meriting Remand

For the period November 29, 2006 through November 5, 2009, ALA Andres denied benefits. For the period beginning November 6, 2009, ALJ Wexler found Newman disabled and granted DIB. Id. In her Appeal Brief, Newman suggested that the second ruling should be read as a concession that the first was wrong. ALJ Wexler's finding of disability was premised on bilateral neuropathy, and, Newman says, that condition resulted from surgery on November 29, 2006. Therefore, she concludes, she must have been disabled starting on November 29, 2006. (Docket No. 13 at 1).

Newman is essentially claiming that the second, favorable, determination is new evidence that merits remand of the November 5, 2009 decision to the SSA. See Opinion at 22. A court may remand a case to the agency upon a showing that there is "new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g). Evidence not submitted to the ALJ may be reviewable as a basis for a court's decision whether to remand to the Commissioner for further proceedings. See Szubak v. Sec'y of Health and Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). Such extrinsic evidence "must relate to the time period for which benefits were denied" and must not be solely of a "later acquired disability, or of the subsequent deterioration of the previously non-disabling condition." Id. The subsequent decision that a claimant is (or has become) disabled is not itself "new and material" evidence warranting remand. Allen v. Commissioner of Social Sec., 562 F.3d 646, 653 (6th Cir. 2009); Cunningham v. Commissioner of Social Sec., 507 Fed App'x 111, 120 (3d Cir. 2012) (citing Allen with approval). Therefore, to demonstrate that remand is appropriate, Newman must show that the second decision was based on new and material evidence that she had good cause for not raising in the first proceeding. Id. at 653; Cunningham, 507 Fed App'x at 120.

Newman has not made that showing here. ALJ Andres and ALJ Wexler came to different conclusions regarding Newman's disabilities based on different evidence encompassing different periods of time. Although ALJ Wexler found that Newman was disabled as of November 6, 2009, her decision is devoid of any statements indicating that Newman was disabled for the period in dispute. I do not find that ALJ Wexler's ...


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