United States District Court, S.D. Indiana, New Albany Division
DUSTY D. DAVIS, Plaintiff,
NANCY A. BERRYHILL Acting Commissioner of Social Security, Defendant.
ORDER DENYING RULE 59(E) MOTION
Baker United States Magistrate Judge
Court issued an opinion [Filing No. 24] and entered
a final judgment [Filing No. 25] in this Social
Security appeal, ordering the case remanded to the
Administrative Law Judge. The Court found that the ALJ erred
in his step three analysis by inadequately addressing medical
equivalence. [Filing No. 24, at ECF p. 1.] The Court
further noted other issues with the decision that could also
be addressed on remand. [Id. at 5-6.] However, the
Commissioner filed a motion to alter or amend the judgment
under Fed. R. Civ. P. 59(e).
under Rule 59(e) allows courts an opportunity to
correct “manifest error of law or fact” or to
consider newly discovered evidence. Cincinnati Life Ins. Co.
v. Beyer, 722 F.3d 939, 955 (7th Cir. 2013). It is not a
second chance for parties to make their arguments.
Hutcherson v. Krispy Kreme Doughnut Corp., 803
F.Supp.2d 952, 956 (S.D. Ind. 2011). As explained below, the
Commissioner's arguments either re-hash the arguments
already considered or fail to show manifest error. Therefore,
the Court denies the Commissioner's motion. [Filing
Commissioner first argues that Plaintiff failed to present a
“valid equivalency argument.” [Filing No. 27,
at ECF p. 4.] The Commissioner asserts that the evidence
to which Plaintiff points does not establish equivalency
because it does not show “other findings” beyond
the criteria in the listing. [Filing No. 27, at ECF p.
3-4 (citing 20 C.F.R § 404.1526(b)(1); SSR 83-19,
1983 WL 31248, at *2 (Jan. 1, 1983)).] The Court responded to
this argument in its opinion: “However, the
claimant's burden is merely to produce evidence in
support of the claim, not to prove equivalence.”
[Filing No. 24, at ECF p. 3.] By showing some
evidence, Plaintiff met this burden and was entitled to an
Commissioner argues that Plaintiff failed to offer a medical
opinion to contradict the opinions of Drs. Sands, Brill, and
Fischer, as required by Stewart v. Bowen, 858 F.2d
1295, 1299 (7th Cir. 1988). This argument misses the point.
As discussed in the Court's opinion and below, the ALJ
never adopted the opinions. [Filing No. 24, at ECF p.
4.] Thus, Plaintiff was not required to offer a
contradictory medical opinion. Plaintiff offered some medical
evidence that should have alerted the ALJ that equivalence
analysis was necessary, but the ALJ failed to provide any.
the Commissioner again argues that “the ALJ afforded
‘considerable weight' to Dr. Fischer's”
residual functional capacity opinion, and, therefore, the ALJ
must have given the same weight to all of Dr. Fischer's
other opinions. [Filing No. 27, at ECF p. 5.] The
Court rejected this argument. [Filing No. 24, at ECF pp.
4-5.] The Commissioner's Rule 59(e) motion
adds new detail. The Commissioner points to language in which
the ALJ concluded that Dr. Fischer's RFC opinion is
consistent with the record as a whole. However, the
Commissioner does not point to any language in the decision
suggesting Dr. Fischer's equivalency opinion was
consistent with the record as a whole.
are free to give different weights to different opinions
offered by the same medical source. See,
e.g., Elder v. Astrue, 529 F.3d 408, 415 (7th
Cir. 2008). In Elder, the court rejected as
meritless the argument that affording a medical source
“substantial weight” for one opinion required the
ALJ to also afford “substantial weight” to the
medical source's other opinions. Id. Therefore,
taking a commonsensical view, the Court cannot assume that
the ALJ would have adopted Dr. Fischer's equivalency
Commissioner next argues that the ALJ must have afforded Dr.
Fischer's equivalency opinion considerable weight because
the ALJ could not have continued his analysis beyond step
three without making a determination. After all, the
Commissioner argues, if the ALJ had found equivalence, the
ALJ would have stopped his analysis and found Plaintiff to be
disabled. This is a dangerous assumption that the Court is
not prepared to make. Without any discussion of equivalency,
the Court cannot know if the ALJ forgot to mention his
analysis or forgot to do an analysis altogether. While the
Court does not assume the worst, it cannot assume the best
Commissioner closes by arguing that any error in failing to
articulate medical equivalence analysis was harmless.
Specifically, the Commissioner argues that Drs. Fischer,
Brill, and Sands offered equivalency opinions, and the ALJ
will “simply explain that he relied upon these
uncontroverted opinions in his step three analysis.”
[Filing No. 27, at ECF p. 9.] As explained above,
the Court cannot make this assumption. “[W]ithout any
analysis from the ALJ, there is no basis for drawing any
conclusions about what evidence he considered or
overlooked.” Thomas v. Colvin, 826 F.3d 953, 959
(7th Cir. 2016). Conjecture that the ALJ would reach one
result “invokes an overly broad conception of harmless
than showing manifest error, the Commissioner largely
re-hashes arguments that the Court has already considered and
rejected. The Commissioner's motion supplements her
earlier arguments and cites additional cases, but it fails to
show manifest error. Therefore, the Court denies her Rule
59(e) motion. [Filing No.27.]
 The Commissioner does not present any
newly discovered ...