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Bland v. Berryhill

United States District Court, N.D. Mississippi, Oxford Division

July 3, 2019

TERRY BLAND, Plaintiff,
NANCY BERRYHILL Commissioner of the Social Security, Defendant.



         This cause is before the Court on Defendant's motion [25] to alter or amend the April 25, 2019, Final Judgment [18], brought pursuant to Fed.R.Civ.P. 59(e). The parties have consented to entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth Circuit. The Court having considered the briefing of the parties and applicable law finds the motion well taken in part and concludes the April 25 judgment should be vacated for the reasons set out below.


         The Court's April 25 judgment [18] reversed the decision of the Commissioner of Social Security on Plaintiff's disability applications and remanded the case for further proceedings. Pursuant to the Court's oral ruling and Final Judgment [18], the Court found

the ALJ's decision is not supported by substantial evidence in the record. The ALJ's determination at step two of the sequential evaluation process that the claimant's tremor was non-severe is not supported by substantial evidence in the record. Treatment notes dated November 18, 2014, indicate the claimant was assessed with a “moderate tremor” of the left and right arms and prescribed Neurontin. Furthermore, medical records from the claimant's treater and the report of the consultative examiner, respectively, indicate the claimant exhibited a tremor (while writing) and coarse shaking (while touching his toes) of his upper extremities, and the claimant consistently complained he shook uncontrollably and testified he dropped food while attempting to eat[1]. This error was prejudicial to the claimant in view of the ALJ's failure to consider the claimant's tremor while crafting an RFC and before concluding the claimant was capable of a full range of light work activity-which could require significant reaching and handling in many cases. Cf. Loza v. Apfel, 219 F.3d 378 (5th Cir. 2000) (reversing and remanding case to district court with instructions to vacate Commissioner's decision where there was a step two error and case had proceeded to step five).

         In addition to the foregoing, the Court included a list of instructions for specific proceedings the ALJ must conduct on remand.

         By the instant motion, the Commissioner makes two arguments: (1) the Court erred when it determined substantial evidence did not support the ALJ's step two finding that Plaintiff's tremor was not a severe impairment and, alternatively, (2) the Court's remand instructions invade the province of the ALJ to decide how to develop the record and assess Plaintiff's RFC. While the Court rejects the Commissioner's argument that it erred with respect to its determination that the ALJ committed error at step two, the Court, nevertheless, reverses its prior conclusion that this error was prejudicial to the claimant and now concludes-for reasons outlined by the Commissioner-that substantial evidence supports the ALJ's RFC determination and ultimate finding of not disabled.

         Rule 59(e)

         Rule 59(e) permits a litigant to file a motion to alter or amend a judgment. Fed.R.Civ.P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”). A motion for reconsideration “is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). Instead, Rule 59(e) serves the narrow purpose of allowing a party to bring errors or newly discovered evidence to the Court's attention. See In re Rodriguez, 695 F.3d 360, 371 (5th Cir. 2012).

         Judicial Review of Social Security Cases

         Judicial review under 42 U.S.C. § 405(g) is limited to two inquiries: (1) whether substantial evidence in the record supports the Commissioner's decision and (2) whether the decision comports with proper legal standards. See Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). “It is more than a mere scintilla, and less than a preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (citing Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir. 1990)). “A decision is supported by substantial evidence if ‘credible evidentiary choices or medical findings support the decision.'” Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (citations omitted).

         The court must be careful not to “reweigh the evidence or substitute . . . [its] judgment” for that of the ALJ, see Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds that the evidence preponderates against the Commissioner's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell, 862 F.2d at 475. If the Commissioner's decision is supported by the evidence, then it is conclusive and must be upheld. Paul v. Shalala, 29 F.3d 208, 210 (5th Cir.1994).


         In support of his decision for finding the claimant's tremor was not a ...

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