IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

HESHAM M. ABDALLA,

Plaintiff,

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

3:14-CV-01174-BR

 

OPINION AND ORDER 

ALAN STUART GRAF

208 Pine Street

Floyd, VA 24091

(540) 745-2519 

Attorney for Plaintiff

BILLY J. WILLIAMS

Acting United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

1 - OPINION AND ORDER
DAVID MORADO

Regional Chief Counsel

LARS J. NELSON 

Special Assistant United States Attorney

1961 Stout Street, Suite 4169

Denver, CO 80294-4003

(303) 844-1948 

Attorneys for Defendant

BROWN, Judge.

This matter comes before the Court on Plaintiff’s Motion

(#15) to Amend or Alter Opinion and Judgment, Rule 59(e). For

the reasons that follow, the Court DENIES Plaintiff’s Motion.

BACKGROUND

Plaintiff Hesham M. Abdalla sought judicial review of a

final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's applications for

Supplemental Security Income (SSI) and Disability Insurance

Benefits (DIB) under Titles XVI and II of the Social Security

Act.

On July 16, 2015, the Court entered an Opinion and Order in

which it affirmed the decision of the Commissioner. On July 16,

2015, the Court entered a Judgment affirming the Commissioner and

dismissing this matter.

On August 13, 2015, Plaintiff filed a Motion to Amend or

Alter Opinion and Judgment. The Court took Plaintiff’s Motion

2 - OPINION AND ORDER
under advisement on September 6, 2015. 

STANDARDS

“[A] Rule 59(e) motion is an ‘extraordinary remedy, to be

used sparingly in the interests of finality and conservation of

judicial resources.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th

Cir. 2014)(quoting Kona Enters., Inc. v. Estate of Bishop, 229

F.3d 877, 890 (9th Cir. 2000)). “A district court may grant a

Rule 59(e) motion if it ‘is presented with newly discovered

evidence, committed clear error, or if there is an intervening

change in the controlling law.’” Id. (quoting McDowell v.

Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999)). The district

court may disregard arguments made for the first time on a motion

under Rule 59(e). Zimmerman v. City of Oakland, 255 F.3d 734,

740 (9th Cir. 2001).

DISCUSSION

Plaintiff asserts this Court committed clear error in its

July 16, 2015, Opinion and Order when it (1) found there was not

any apparent unresolved conflict between Plaintiff’s limitation

to occasional overhead reaching bilaterally and the jobs

identified by the vocational expert (VE) and (2) concluded the

finding of the Administrative Law Judge (ALJ) at Step Three was

supported by substantial evidence in the record.

I. Step Five

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In its July 16, 2015, Opinion and Order the Court noted the

ALJ posed a hypothetical to the VE at the administrative hearing

that included all of the limitations the ALJ found to be

credible. Based on that hypothetical the VE testified a claimant

with those limitations could perform the jobs of security guard,

assembler, timekeeper, and data-entry clerk. The ALJ asked the

VE twice if there was any conflict between the VE’s findings and

the DOT, and the VE testified there was not any conflict. 

Plaintiff, however, asserted in his pleadings filed in this Court

that the jobs identified by the VE required frequent reaching

even though Plaintiff’s residual functional capacity (RFC)

included the limitations of no more than occasional bilateral

reaching overhead. According to Plaintiff, therefore, the jobs

identified by the VE were inconsistent with the medical evidence. 

The Court noted judges in this district have rejected

Plaintiff’s argument. See, e.g., Gregg v. Comm’r of Social Sec., 

No. 3:13-CV-01215-TC, 2014 WL 4101739, at *3 (D. Or. Aug. 11,

2014)(“Plaintiff argues . . . the ALJ relied on erroneous

vocational expert opinion because . . . he limited plaintiff with

respect to ‘overhead reaching,’ [but] the [VE] identified jobs

that require ‘frequent reaching’ according to the [DOT]. . . . 

The [DOT, however,] is silent with respect to the type of

reaching involved in the jobs identified in that it only

identifies ‘reaching’ in general. Accordingly, the ALJ did not

4 - OPINION AND ORDER
err.”); Price v. Colvin, 6:13-CV-01137-PK, 2015 WL 363312, at *7

(D. Or. Jan. 23, 2015)(same). The Court found “the reasoning of

. . . Gregg[] and Price to be persuasive and on the basis of that

reasoning conclude[d] the ALJ did not err when she relied on the

testimony of the VE with respect to Plaintiff’s ability to

perform other jobs that exist in the national economy.” Opin.

and Order at 16. The Court also found the reasoning in

Ketelboeter v. Astrue, 550 F.3d 620 (7th Cir. 2008),1 to be

persuasive. Plaintiff has not identified a Ninth Circuit case

that supports his argument. Instead Plaintiff points only to

other cases decided in this district in which judges reached a

conclusion opposite to that reached in Gregg, Price, and this

Court. 

In the absence of any Ninth Circuit precedent, the Court did

not commit clear error when it found one line of decisions in

this district to be more persuasive than another. 

II. Step Three

Plaintiff alleges the Court committed clear error when it

found the ALJ’s finding at Step Three was supported by

substantial evidence. Plaintiff reiterates the arguments

contained in his Opening Brief and Reply Brief. 

In Alaska Department of Environmental Conservation v. E.P.A.

1 The Court erroneously identified Ketelboeter as a Ninth

Circuit case in its citation, but the Court did not rely on

Ketelboeter as precedent in its reasoning.

5 - OPINION AND ORDER
the Supreme Court noted “[e]ven when an agency explains its

decision with less than ideal clarity, [the court] must uphold it

if the agency’s path may reasonably be discerned.” 540 U.S. 461,

497 (2004)(quotation omitted). Similarly, the Ninth Circuit has

noted reviewing courts “are not deprived of [their] faculties for

drawing specific and legitimate inferences from the ALJ's

opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir.

1989). Here the Court’s conclusion is also consistent with Lewis

v. Apfel in which the Ninth Circuit affirmed the district court’s

decision and noted the “ALJ [must] discuss and evaluate the

evidence that supports his or her conclusion,” but there is not

any requirement that the ALJ do so under a particular heading. 

236 F.3d 503, 513 (9th Cir. 2001). Here the Court concluded,

based on the context of the ALJ’s opinion, that “the ALJ

incorporated Dr. Westfall’s findings in the ALJ’s Step Three

finding.” The Court, therefore, concludes Plaintiff has not

established that the Court committed clear error when it found

the ALJ’s finding at Step Three was supported by substantial

evidence in the record. Thus, after reconsidering Plaintiff’s

arguments, the Court concludes they do not provide a basis to

amend or to alter the Court’s Opinion and Order or Judgment. 

Accordingly, the Court denies Plaintiff’s Motion to Alter or

Amend Opinion and Judgment.

6 - OPINION AND ORDER
CONCLUSION

For these reasons, the Court DENIES Plaintiff’s Motion (#15)

to Amend or Alter Opinion and Judgment, Rule 59(e).

IT IS SO ORDERED.

DATED this 8th day of October, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

7 - OPINION AND ORDER