Riley v. SSA, No. 7:2011cv00071 - Document 21 (E.D. Ky. 2012)

Court Description: MEMORANDUM OPINION & ORDER: Plaintiffs motion for relief pursuant to Fed. R. Civ. P. 59(e), DE 19 , is hereby DENIED. Signed by Judge Joseph M. Hood on 5/24/12.(MJY)cc: COR

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION at PIKEVILLE JERRY D. RILEY, ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant. ** ** Action No. 7:11-cv-71-JMH MEMORANDUM OPINION AND ORDER ** ** ** On April 12, 2012, the Court denied Plaintiff s motion for summary judgment judgment, and thereby determination with granted Defendant s affirming respect to the the Court upon Plaintiff s Federal Rule of Civil Procedure 59(e). for Commissioner s Plaintiff s Supplemental Security Income ( SSI ). before motion adverse application [DE 17]. motion summary for [DE 19]. for This matter is relief under The Defendant has filed a response, [DE 20], and this matter is now ripe for review. For the following reasons, the Plaintiff s motion will be denied. This Court will grant a motion under Rule 59(e) only where the Court has committed a clear error of law, reconsideration is warranted based on newly discovered evidence or to accommodate an intervening change in the controlling law, or to otherwise prevent manifest injustice. Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005). By rehashing his previous argument based on Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997), Plaintiff apparently contends that the Court committed a clear error of law in denying his motion for summary judgment. As stated in this Court s prior opinion, however, Plaintiff s 1996 RFC of sedentary was abrogated by the Commissioner s 2001 decision in which determined to have the RFC for light work. Plaintiff was While Plaintiff concedes that he did not seek judicial review of that decision, he contends that it is properly before this Court because, at the time of the decision, Plaintiff was unrepresented and had mental impairment issues. In so arguing, Plaintiff relies on Social Security Ruling 90-4(4), which applies only to cases in which the claimant resides in Maryland, North Carolina, South Carolina, record Virginia, reveals that or West Virginia. Plaintiff lived in The administrative Kentucky during the relevant time period, and Plaintiff does not contend otherwise. Further, SSR 90-4(4) requires claimants relying upon that ruling to present a prima facie case of mental incompetence, which Plaintiff failed to address in both his motion for summary judgment and his 59(e) motion. The Court now turns to Plaintiff s objections to the Commissioner s reliance on the interrogatory responses of Dr. 2 Stuart Gitlow, the half-brother of ALJ William Gitlow, who issued an adverse ruling on Plaintiff s SSI application in 2005. Contrary to Plaintiff s assertion, Dr. Gitlow s involvement in this matter does not amount to the undeniable appearance of impropriety. fact that hearing This is especially evident when one considers the ALJ Chwalibog testimony gave because, little weight to that point, Dr. at Dr. Gitlow s Gitlow had obtained knowledge of his half-brother s prior involvement in Plaintiff s case. While Plaintiff may be convinced that blood is thicker than water, it is unreasonable to speculate that Dr. Gitlow somehow communicated with ALJ Gitlow concerning events that transpired despite his in Plaintiff s apparently SSI credible claim testimony two years that he prior, had no knowledge of his half-brother s involvement in Plaintiff s case until the day of the hearing at which he testified. Further, the provisions relied upon by Plaintiff describe conflicts of interest between examining consultants and their practices and, therefore, are not applicable with respect to the use of Dr. Gitlow s opinion, as he did not examine Plaintiff and Plaintiff has alleged no conflict psychological practice. Additionally, improperly with respect to Dr. Gitlow s See 20 C.F.R. ยงยง 404.1519q, 416.919q. while Plaintiff contends cherry pick[ed] Dr. that Gitlow the from Commissioner outside the designated region for Plaintiff s application, he provides no 3 legal support for this contention, nor any facts or law that would indicate that the Court has misapplied the law or that manifest injustice has occurred. For the foregoing reasons, IT IS ORDERED that Plaintiff s motion for relief pursuant to Fed. R. Civ. P. 59(e), [DE 19], is hereby DENIED. This the 24th day of May, 2012. 4

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