IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KENNETH A. WRIGHT, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 14-00465-N

)

CAROLYN W. COLVIN, Acting )

Commissioner of Social Security, )

Defendant. )

ORDER

This action is before the Court on the motion to alter or amend the judgment 

under Federal Rule of Civil Procedure 59(e) (Doc. 23) filed by the Defendant 

Commissioner of Social Security (“the Commissioner”). Plaintiff Kenneth A. 

Wright has timely filed a response (Docs. 25, 26) in opposition to the motion. The 

Commissioner was given an opportunity to filed a reply to the response (see Doc. 24) 

but did not do so. The Rule 59(e) motion is now under submission and is ripe for 

disposition. Upon consideration, the Court finds that the motion to alter or amend 

(Doc. 23) is due to be DENIED.

I. Legal Standards

“The only grounds for granting [a Rule 59] motion are newly-discovered 

evidence or manifest errors of law or fact.” In re Kellogg, 197 F.3d 1116, 

1119 (11th Cir. 1999). “[A] Rule 59(e) motion [cannot be used] to 

relitigate old matters, raise argument or present evidence that could 

have been raised prior to the entry of judgment.” Michael Linet, Inc. v. 

Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).

Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (per curiam).Accord, e.g.,

Hamilton v. Sec’y, Fla. Dep’t of Corr., 793 F.3d 1261, 1266-67 (11th Cir. 2015) (per 

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curiam), cert. denied, 136 S. Ct. 1661 (2016).

II. Background

Wright brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking 

judicial review of a final decision of the Commissioner denying him benefits under 

the Social Security Act. On February 26, 2016, the Court reversed the 

Commissioner’s decision, remanded Wright’s case to the Commissioner under 

sentence four of § 405(g) for further proceedings, and entered final judgment 

accordingly. (Docs. 21, 22). In so doing, the Court sustained Wright’s lone claim of 

error: that the Administrative Law Judge (“ALJ”) “reversibly erred in failing to give 

significant weight to opinion of Plaintiff’s treating physician, Mark Pita, M.D., who 

offered an opinion on the severity of the claimant’s pain.” (Doc. 21 at 7 (quoting 

Doc. 14 at 1)).

Specifically, the Court noted that “[t]he ALJ assigned ‘no substantial weight’ 

to [Dr. Pita’s] opinion because it was ‘inconsistent with the examination notes and 

reports in Exhibits B10F and B16F.’ ” (Doc. 21 at 12 (record citations omitted)). 

The Court, agreeing with Wright, held that “standing alone, this summary citation 

to two exhibits, collectively consisting of over seventy pages of medical records, is 

insufficient, as the Court is unable to determine what inconsistencies the ALJ relied 

on to justify assigning less than substantial weight to the opinion.” (Id.).

On March 22, 2016, the Commissioner timely filed1 the present motion to 

alter or amend the judgment, requesting that the Court vacate its previous 

 1 I.e., within “28 days after the entry of judgment.” Fed. R. Civ. P. 59(e).

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judgment and affirm the Commissioner’s decision under §§ 405(g) and 1383(c)(3). 

(Doc. 33). 

III. Analysis

In finding insufficient the ALJ’s articulated reason for assigning less than 

substantial weight to Dr. Pita’s opinion, the Court noted: “The Commissioner’s brief 

provides a more in-depth discussion of Exhibits B10F and B16F, citing numerous 

sections of those records purporting to support the ALJ’s decision, and also cites 

other record evidence that is contrary to Dr. Pita’s opinion. However, the Court

cannot affirm based on such post hoc reasoning.” (Doc. 21 at 13 n.7). The 

Commissioner argues that the Court committed “a clear error of law” by 

“affirmatively ignor[ing] record evidence that was purportedly not discussed in the 

ALJ’s decision” (Doc. 23-1 at 2), thus contravening longstanding Eleventh Circuit

precedent holding that courts “must scrutinize the record as a whole to determine if 

the decision reached is reasonable and supported by substantial evidence.” 

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted). 

See also, e.g., Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997) (“We will 

not disturb the Commissioner's decision if, in light of the record as a whole, it 

appears to be supported by substantial evidence. See 42 U.S.C. § 405(g); MacGregor 

v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).”). 

The Commissioner also argues, in the alternative, that the ALJ’s stated 

reason for discounting Dr. Pita’s opinion was adequately explained by the ALJ’s 

more specific references to portions of Exhibits B10F and B16F noted elsewhere in 

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his decision. Thus, the Commissioner argues, the Court made a “clear error of fact” 

in determining that the ALJ’s made only a “summary citation” to those exhibits in 

assigning weight to Dr. Pita’s opinion.

The “substantial evidence” “standard of review applies only to findings of fact. 

No similar presumption of validity attaches to the [Commissioner]’s conclusions of 

law, including determination of the proper standards to be applied in reviewing 

claims.” MacGregor, 786 F.2d at 1053 (quotation omitted). Accord, e.g., Wiggins v. 

Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for appeals 

from the administrative denials of Social Security benefits dictates that ‘(t)he 

findings of the Secretary as to any fact, if supported by substantial evidence, shall be 

conclusive ....’ 42 U.S.C.A. s 405(g) (West Supp. 1982) (emphasis added). As is plain 

from the statutory language, this deferential standard of review is applicable only to 

findings of fact made by the Secretary, and it is well established that no similar 

presumption of validity attaches to the Secretary’s conclusions of law, including 

determination of the proper standards to be applied in reviewing claims.” (footnote 

and some citations and quotation marks omitted)). “ ‘A determination that is 

supported by substantial evidence may be meaningless ... if it is coupled with or 

derived from faulty legal principles.’ ” Chester v. Bowen, 792 F.2d 129, 131 (11th 

Cir. 1986) (per curiam) (quoting Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir.

1983)). This Court “review[s] de novo the Commissioner’s conclusions of law ... ‘The 

[Commissioner]’s failure to apply the correct law or to provide the reviewing 

court with sufficient reasoning for determining that the proper legal 

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analysis has been conducted mandates reversal.’ ” Ingram v. Comm'r of Soc. 

Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (emphasis added) (quoting 

Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)). Accord Keeton v. 

Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).

In this Circuit, it is well-established that, “[a]bsent ‘good cause,’ an ALJ is to 

give the medical opinions of treating physicians substantial or considerable weight. 

Good cause exists when the: (1) treating physician's opinion was not bolstered by the 

evidence; (2) evidence supported a contrary finding; or (3) treating physician's 

opinion was conclusory or inconsistent with the doctor's own medical records. With 

good cause, an ALJ may disregard a treating physician’s opinion, but he must clearly 

articulate the reasons for doing so.” Winschel v. Comm'r of Soc. Sec., 631 F.3d 

1176, 1179 (11th Cir. 2011) (citations and quotations omitted). Accord, e.g., 

Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).

Moreover, the ALJ must state with particularity the weight given to different 

medical opinions and the reasons therefor. Sharfarz v. Bowen, 825 F.2d 278, 

279 (11th Cir. 1987) (per curiam). “In the absence of such a statement, it is 

impossible for a reviewing court to determine whether the ultimate decision 

on the merits of the claim is rational and supported by substantial evidence.” 

Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). Therefore, when the 

ALJ fails to “state with at least some measure of clarity the grounds for his 

decision,” we will decline to affirm “simply because some rationale might have 

supported the ALJ's conclusion.” Owens v. Heckler, 748 F.2d 1511, 1516 (11th 

Cir. 1984) (per curiam). In such a situation, “to say that [the ALJ’s] decision is 

supported by substantial evidence approaches an abdication of the court’s 

duty to scrutinize the record as a whole to determine whether the conclusions 

reached are rational.” Cowart, 662 F.2d at 735 (quoting Stawls v. Califano, 

596 F.2d 1209, 1213 (4th Cir. 1979)) (internal quotation marks omitted).

Winschel, 631 F.3d at 1179 (emphasis added).

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The Commissioner argues that the Court improperly expanded the scope of

the Owens holding repeated in Winschel, see supra, in declining to consider the 

record evidence cited in her brief.2 The Commissioner points out that the Owens 

holding was announced in the context of an “ALJ’s failure to make any finding at all 

on the credibility of the testimony relating to [an] issue” in dispute, Owens, 748 F.2d 

at 1515, whereas here the ALJ did state the weight given to Dr. Pita’s opinion and a 

reason therefore, however conclusory it may have been. The Commissioner also 

argues that Winschel “doe not purport to expand [Owens’s] scope.” (Doc. 23-1 at 5).

In declining to consider the Commissioner’s post hoc citation of evidence that 

she asserts supports the ALJ’s statement of “good cause” in discounting Dr. Pita’s 

opinion, the Court cited two Eleventh Circuit cases that, in turn, each relied on 

Owens in declining affirm an ALJ’s deficient express reasoning based on post hoc 

rationales advanced for the first time on judicial review. (See Doc. 21 at 13 n.7). 

In Hubbard v. Colvin, No. 15-12920, 2016 WL 624403 (11th Cir. Feb. 17, 2016) (per 

curiam) (unpublished), the district court, despite “identifying multiple ‘careless’ 

errors” in the ALJ’s reasoning, relied on its own analysis of record evidence of to 

affirm the decision. 2016 WL 624403, at *3. The Eleventh Circuit stated that, “in

 2 Indeed, the Commissioner appears to disagree with the reasoning of Owens itself, 

particularly its reliance SEC v. Chenery Corp., 318 U.S. 80 (1943), a non-Social-Security 

decision which the Commissioner asserts “cannot be read as instructing a reviewing court to 

ignore record evidence in a Social Security case.” (Doc. 23-1 at 5 n.1). Whatever the 

wisdom of Owens’s reliance on Chenery Corp., it is not the province of the district court to 

question the binding reasoning of a circuit court, and Rule 59(e) motions “are neither appeal 

substitutes nor a ‘dry run’ to test arguments in anticipation of a forthcoming appeal.” Lee 

v. Thomas, Civil Action No. 10-0587-WS-M, 2012 WL 3137901, at *2 (S.D. Ala. Aug. 1, 2012) 

(Steele, C.J.).

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relying on evidence of Hubbard’s ability ‘to perform basic personal tasks,’ the district 

court affirmed based on its own post hoc rationale[,]” and it “decline[d] to affirm 

using reasoning that ‘might have supported the ALJ’s conclusion’ but was not offered 

by the ALJ himself.” Id. (quoting Owens, 748 F.2d at 1516). In Dempsey v. 

Commissioner of Social Security, 454 F. App'x 729, 732 (11th Cir. 2011) (per curiam) 

(unpublished), the Eleventh Circuit rejected the Commissioner’s post hoc rationale 

that ‘might have supported the ALJ’s conclusion[]’ ” to reject a treating physician’s 

opinion when “the ALJ did not offer this explanation in his decision.” 454 F. App’x 

at 733 (quoting Owens, 748 F.2d at 1516).3

The Commissioner does not attempt to distinguish Dempsey or Hubbard, 

instead dismissing them as “lack[ing] precedential value (because they are 

unpublished)” and claiming that they, like Winschel, do not “purport[] to expand 

 3 See also Tavarez v. Comm'r of Soc. Sec., No. 15-11860, 2016 WL 75424, at *7 (11th Cir. 

Jan. 7, 2016) (per curiam) (unpublished) (“[W]e conclude that the ALJ’s clearly articulated 

grounds for his decision to discredit Tavarez’s medical opinion evidence are not supported by 

substantial evidence. See Winschel, 631 F.3d at 1179. To the extent that the Commissioner 

identifies other record evidence that supports the ALJ’s decision, we do not know whether 

this evidence formed the basis of the ALJ's determinations, and we will not affirm ‘simply 

because some rationale might have supported the ALJ's conclusions.’ See id. at 1179.”). But 

see McGriff v. Comm'r, Soc. Sec. Admin., No. 15-14585, 2016 WL 3553213, at *3 (11th Cir. 

June 30, 2016) (per curiam) (unpublished) (“McGriff contends that the district court wrongly 

‘correct[ed] or rehabilitate[d] the [ALJ's] decision,’ instead of reviewing it. In support of 

that argument, she points to the following portion of the magistrate judge's report and 

recommendation: ‘The ALJ accorded little weight to the opinion of [McGriff's treating 

physician], stating that “they are inconsistent with his own findings on examination and are 

unsupported by the weight of the evidence of record.” (Tr. 86). This is a broad, generalized 

statement made all the more unhelpful by the fact that the ALJ did not bother to point to 

any particular records of [McGriff's treating physician] which were inconsistent with his 

opinion.’ Immediately after the portion of the report and recommendation that McGriff 

quotes, the magistrate judge goes on to state that his review of the administrative record 

confirmed that the treating physician's opinion was in fact inconsistent with his own 

medical records and the records of another physician, which supported the ALJ's 

conclusions. We can discern no error in that reasoning.”).

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[Owens’s] scope.” (Doc. 23-1 at 5). While the Commissioner is correct that neither 

Dempsey nor Hubbard is binding on this Court, they may be, and in this case have 

been, cited as persuasive authority supporting a more expansive application of 

Owens than the Commissioner would like. See 11th Cir. R. 36-2; Henry v. Comm'r 

of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam). The 

Commissioner has cited no authority that clearly contradicts Dempsey or Hubbard, 

and her arguments for a more limited application of Owens amount to a mere 

disagreement over how existing precedent should be interpreted, which does not rise 

to the level of a “manifest error of law” justifying relief under Rule 59(e).4 See, e.g., 

Lee v. Thomas, Civil Action No. 10-0587-WS-M, 2012 WL 3137901, at *2 (S.D. Ala. 

Aug. 1, 2012) (Steele, C.J.) (“manifest error” not shown where movant simply 

disagrees with the court’s reasoning or conclusions).

The Court also disagrees that it committed a “manifest error of fact” in 

characterizing the ALJ’s explanation as a “summary citation” to Exhibits B10F and 

B16F. As has already been explained, an ALJ “must clearly articulate the reasons” 

for assigning less than substantial weight to a treating physician’s opinion. Here, 

the ALJ found that Dr. Pita’s opinion was “inconsistent with the examination notes 

 4 To the extent the Commissioner argues that Owens, Winschel, Dempsey, and Hubbard are 

in conflict with “prior panel precedent” in this Circuit requiring scrutiny of the record as a 

whole, this argument is meritless. As has been explained, the duty to scrutinize the record 

as a whole applies to determining whether an ALJ’s factual determinations are supported by 

substantial evidence. On the other hand, the failure to clearly state “good cause” for 

assigning less than substantial weight to a treating physician’s opinion is an error of law 

that mandates reversal because, in the absence of such a statement, it is impossible for a 

reviewing court to determine whether the ultimate decision on the merits of the claim is 

rational and supported by substantial evidence.

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and reports in Exhibits B10F and B16F” but failed to “clearly articulate” how any 

portion of those exhibits, collectively consisting of over seventy pages of medical 

records, was in fact inconsistent with Dr. Pita’s opinion. While the Commissioner is 

correct that the ALJ more extensively discussed specific portions those two exhibits 

elsewhere in his decision, the ALJ’s failure to clearly link any of it to his discussion 

of Dr. Pita’s opinion means the Court can only speculate (and, thus, engage in 

impermissible post hoc rationalization) as to which of these specific portions, if any, 

formed the basis of the ALJ’s reasoning regarding Dr. Pita’s opinion. The Court 

also cited two persuasive decisions finding that similar conclusory statements are 

insufficient to show “good cause” for rejecting a treating physician’s opinion, see

Perez v. Comm'r of Soc. Sec., 625 F. App'x 408, 417-18 (11th Cir. 2015) (per curiam) 

(unpublished) (“[T]he ALJ stated Dr. Hasbun's opinion about Perez's limitations 

contradicted Dr. Hasbun’s own contemporaneous treatment notes; however, this 

statement was conclusory, because the ALJ did not identify any contradictions. The 

ALJ listed several medical findings after making this statement, but those findings 

all came from consulting the report of the examining physician, Dr. Meruelo. To 

the extent the ALJ relied upon a purported contradiction between Dr. Hasbun's 

treatment notes and assessment of Perez's abilities, the explanation is insufficient. 

See Phillips, 357 F.3d at 1241.”); Kahle v. Comm'r of Soc. Sec., 845 F. Supp. 2d 1262, 

1272 (M.D. Fla. 2012) (“[C]onclusory statements by an ALJ to the effect that an 

opinion is inconsistent with or not bolstered by the medical record are insufficient to 

show an ALJ's decision is supported by substantial evidence unless the ALJ 

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articulates factual support for such a conclusion.”), and the Commissioner has cited 

no binding authority clearly contradicting those decisions. Thus, no “manifest 

error” has been shown in this regard.

IV. Conclusion

In accordance with the foregoing analysis, it is ORDERED that the 

Commissioner’s motion to alter or amend the judgment under Federal Rule of Civil 

Procedure 59(e) (Doc. 23) is DENIED.

DONE and ORDERED this the 1st day of August 2016.

/s/ Katherine P. Nelson 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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