Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RAFAEL V. TANGUMA, §

§

Plaintiff, §

§

v. § Civil Action No. 3:03-CV-0367-L

§

JO ANNE B. BARNHART, Commissioner §

of the Social Security Administration, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the court is Plaintiff’s Motion for Amendment of Judgment under Rule 59 of Federal

Rules of Civil Procedure, filed February 27, 2006. Having reviewed the motion, the record and

applicable law, the court denies Plaintiff’s motion. 

I. Background

Plaintiff seeks amendment of the court’s judgment dated February 15, 2006, in which the

court affirmed the Commissioner’s decision denying Plaintiff disability benefits and dismissed this

social security appeal with prejudice. 

II. Applicable Standard

Pursuant to Fed. R. Civ. P. 59, “[m]otions for a new trial or to alter or amend a judgment

must clearly establish either a manifest error of law or fact or must present newly discovered

evidence.” Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990) (citations omitted). Such

motions may not be used to relitigate issues that were resolved to the movant’s dissatisfaction.

Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 289 (5th Cir. 1989). A Rule 59 motion may

not be used to relitigate old matters, raise arguments, or present evidence that could have been raised

 

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prior to entry of judgment. See generally 11 C. WRIGHT, A. MILLER & M. KANE § 2810.1 at 127-

28 (2d ed. 1995); see also Simon, 891 F.2d at 1159. With respect to newly discovered evidence, a

court may not grant such a motion unless the movant establishes: “(1) the facts discovered are of

such a nature that they would probably change the outcome; (2) the alleged facts are actually newly

discovered and could not have been discovered earlier by proper diligence; and (3) the facts are not

merely cumulative or impeaching.” Infusion Resources, Inc. v. Minimed, Inc., 351 F.3d 688, 696-97

(5th Cir. 2003). District courts have “considerable discretion in deciding whether to grant or deny

a motion to alter a judgment.” Hale v. Townley, 45 F.3d 914, 921 (5th Cir. 1995). In exercising this

discretion, a district court must “strike the proper balance between the need for finality and the need

to render just decisions on the basis of all the facts.” Id. With this balance in mind, the Fifth Circuit

has observed that Rule 59(e) “favor[s] the denial of motions to alter or amend a judgment.”

Southern Constructors Group, Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993).

III. Analysis

Plaintiff argues that the court should amend its judgment to correct three instances of plain

error, namely: (1) that the ALJ used the wrong rule in the medical vocational guidelines to decide

the case; (2) that the court erred in accepting the magistrate judge’s finding that 900 airline security

positions and 1000 positions as a distributor of advertising materials constitutes work in significant

numbers, since the court relied on an inapposite case; and (3) that the court erred in ruling that

Plaintiff had not objected to the magistrate judge’s finding that there was no conflict between the

vocational expert’s testimony and the Dictionary of Occupational Titles (“DOT”). For the reasons

stated below, the court determines that these arguments are without merit. 

 

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The court determines that Plaintiff’s first point of error should be rejected. Plaintiff contends

that the court should amend its judgment since the ALJ used the wrong rule in the medical

vocational guidelines to decide the case. This is the first time Plaintiff has raised this argument, and

it is therefore waived. A novel argument raised for the first time in a Rule 59(e) motion pertaining

to an alleged error by the ALJ cannot form the basis for an amendment of the court’s judgment.

Accordingly, the court rejects Plaintiff’s first argument.

The court determines that Plaintiff’s second point of error also lacks merit. Plaintiff argues

that the court should amend its judgment because the court erred in accepting the magistrate judge’s

finding that 900 airline security positions and 1000 positions as a distributor of advertising materials

constitutes work in significant numbers. As the point of error, Plaintiff asserts that the district court

cited a case wherein the court found that 3750 machine tender jobs was significant, which number

is much higher than the number of jobs in this case. While Plaintiff is correct that the court cited

to Hollan v. Apfel, 2001 WL 180151, at *8 and n.7 (N.D. Tex. Feb. 20, 2001) (Sanders, J.), Plaintiff

neglects to mention that the court cited to Hollan, as well as to “cases cited therein.” See Mem. Op.

& Order at 11-12 n.2. In the cases upon which Judge Sanders relies, courts found that jobs in

numbers far lower than 900 constituted a significant number of jobs. See Hollan, 2001 WL 180151,

at *8 n.7. More importantly, this court determined that it did not even need to reach this issue, as

it was an alternative holding of the magistrate judge. See Mem. Op. & Order at 11 n.2 (“To the

extent the court need even consider Tanguma’s objections to the magistrate judge’s alternative

holding, the court overrules these objections.”). Accordingly, the court rejects Plaintiff’s second

argument.

 

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*

In addition, in Carey, the court ruled that neither the DOT nor the vocational expert evidence is per

se controlling, and when faced with a conflict between the expert and the DOT, the ALJ may rely upon the

vocational expert’s testimony provided the record reflects an adequate basis to do so. Carey, 230 F.3d at 146-

47. In this case, assuming arguendo that a conflict arose, the record reflects that the ALJ had an adequate

Memorandum Opinion and Order – Page 4

Finally, the court determines that Plaintiff’s third point of error is similarly without merit.

Plaintiff asserts that the court erroneously determined that Plaintiff had not objected to the

magistrate judge’s finding that there was no conflict between the vocational expert’s testimony and

the DOT. According to Plaintiff, his objection was “obvious[.]” See Mot. at 4. Having once again

reviewed Plaintiff’s objection, the court determines that at no point does Plaintiff object to this point.

Even assuming he had, the court would have overruled this objection, since the court agrees with

the magistrate judge that Plaintiff failed to demonstrate any open and obvious conflict between the

vocational expert’s testimony and the DOT’s description of the relevant jobs. To reiterate, the

magistrate judge rejected Plaintiff’s argument that the ALJ failed to apply the proper legal standard

when he did not ask the vocational expert to explain any conflicts between the expert’s testimony

that he could perform the jobs of airline security, flagger, and locker room attendant (even though

he was illiterate) and the requirements for these positions in the DOT, namely, that they all require

an ability to read. The magistrate judge found that there was no conflict under the circumstances,

since the ALJ limited the expert to only those jobs which did not require reading ability. Report at

12-13. Having reviewed the hearing testimony, the court agrees with the magistrate judge.

Moreover, the Fifth Circuit has cautioned against allowing a claimant to scan the record for implied

or unexplained conflicts between expert witness testimony and the voluminous provisions of the

DOT, and then present the conflict as reversible error when the conflict was not considered

sufficient to merit adversarial testing during the administrative hearing. See Carey v. Apfel, 230 F.3d

131, 146 (5th Cir. 2000).*

 

 

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basis for relying on the expert.

Memorandum Opinion and Order – Page 5

IV. Conclusion

For the reasons herein stated, the court denies Plaintiff’s Motion for Amendment of

Judgment under Rule 59 of Federal Rules of Civil Procedure.

It is so ordered this 2nd day of March, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

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