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NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

BERNARDA GOMEZ 

Plaintiff, 

 v. 

Civ. Action No. 11-2960 (KSH) 

COMMISSIONER OF SOCIAL SECURITY, 

OPINION

Defendant. 

 

Katharine S. Hayden, U.S.D.J. 

On May 24, 2011, plaintiff Bernarda Gomez brought this action to challenge the final 

decision of the Commissioner of Social Security (“Commissioner”) that she was not entitled to 

disability benefits under Title II or eligible for Supplemental Security Income under Title XVI of 

the Social Security Act. The parties filed written submissions pursuant to Local Civ. R. 9.1, and 

on March 1, 2012, the Court held oral argument. [See D.E. 11, 12, 16.] At the conclusion of oral 

argument the Court ruled in plaintiff’s favor, and entered an Order on March 6, 2012 reversing 

the ALJ and directing payment of disability benefits to Gomez. [D.E. 18.] 

Gomez filed a timely motion for attorney’s fees and costs pursuant to the Equal Access to 

Justice Act (“EAJA”), 28 U.S.C. § 2412(d). [D.E. 19.] The Commissioner responded by filing a 

motion for reconsideration of the March 6th Order [D.E. 21] accompanied by a motion to stay 

the fee application [D.E. 22]. 

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A. The Motion for Reconsideration 

The Commissioner seeks that this Court either reconsider its Order of March 6, 2012 

pursuant to Local Rule 7.1(i), or alternatively alter or amend the Order pursuant to Federal Rule 

of Civil Procedure 59(e). A motion for reconsideration is regarded as “the functional equivalent 

of a Rule 59 motion . . . to alter [or] amend a judgment.” Venen v. Sweet, 758 F.2d 117, 122 (3d 

Cir. 1985). Consequently, instead of Fed. R. Civ. P. 59, Rule 7.1(i) governs motions for 

reconsideration filed in the District of New Jersey, and it is under the provisions of Rule 7.1(i) 

that the Court will address the Commissioner’s motion. Cf. Bryne v. Calastro, No. 05-068, 2006 

WL 2506722, at *1 (D.N.J. Aug. 28, 2006) (Cavanaugh, J.). 

The purpose of a motion for reconsideration is “to correct manifest errors of law or fact 

or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 

1985); see also P. Shoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352 

(D.N.J. 2001) (Walls, J.); Yurecko v. Port Auth. Trans-Hudson Corp., 279 F. Supp. 2d 606, 609 

(D.N.J. 2003) (Linares, J.). Reconsideration of a judgment after its entry is an extraordinary 

remedy, and motions to reconsider are granted “very sparingly.” Maldonado v. Lucca, 636 F. 

Supp. 621, 630 (D.N.J. 1986) (Brotman, J.); accord Damiano v. Sony Music Entm’t, Inc., 975 F. 

Supp. 623, 634 (D.N.J. 1997) (Simandle, J.). 

Accordingly, Local Rule 7.1(i) provides that a party filing a motion for reconsideration 

must file “a brief setting forth concisely the matter or controlling decisions which the party 

believes the Judge . . . has overlooked.” If the motion is properly filed, a court may grant it for 

one of three reasons: “(1) an intervening change in the controlling law has occurred, (2) evidence 

not previously available has become available, or (3) it is necessary to correct a clear error of law 

or prevent manifest injustice.” Database Am., Inc. v. Bellsouth Adver. & Publ’g Corp., 825 F. 

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Supp. 1216, 1220 (D.N.J. 1993) (Lechner, J.) (citing Weyerhaeuser Corp. v. Koppers Co., 771 F. 

Supp. 1406, 1419 (D. Md. 1991)); Carmichael v. Everson, Civ. No. 03-4787, 2004 WL 1587894, 

at *1 (D.N.J. May 21, 2004) (Cavanaugh, J.). A motion for reconsideration used “to ask the 

Court to rethink what it had already thought through—rightly or wrongly,” is improper. CibaGeigy Corp. v. Alza Corp., Civ. No. 91-5286, 1993 WL 90412, at *1 (D.N.J. Mar. 25, 1993) 

(Wolin, J.) (citing Oritani Sav. & Loan Ass’n v. Fid. & Deposit Co. of Md., 744 F. Supp. 1311, 

1314 (D.N.J. 1990), rev’d on other grounds, 989 F.2d 635 (3d Cir. 1993)). “Local Rule 7.1 . . . 

does not contemplate simple re-litigation of issues already decided.” Interfaith Community Org. 

v. PPG, 702 F. Supp. 2d 295, 317 n.3 (D.N.J. 2010) (Greenaway, J.). See also In re Gabapentin 

Patent Litigation, 432 F. Supp. 2d 461, 463 (D.N.J. 2006) (Lifland, J.) (“Local Rule 7.1(i) 

governing reconsideration does not contemplate a recapitulation of arguments considered by the 

court before rendering its decision.”). Thus, a party “must show more than a disagreement with 

the court’s decision.” Panna v. First Trust Savings Bank, 760 F. Supp. 432, 435 (D.N.J. 1991) 

(Brotman, J.). 

The Commissioner fails to make the required showing. He argues that a remand of all 

steps is required as a matter of law to ensure that the Commissioner’s decision is based on 

substantial evidence. [D.E. 21 at 8.] This is based on the theory that this Court improperly 

concluded that what the ALJ did after Judge Debevoise’s remand constituted error because all 

five steps had not been reevaluated, and so the Commissioner was unable to fully develop the 

record upon which the ALJ’s decision at Step 5 was to be based.1 [Id.] The Commissioner 

contends, therefore, that the proper course of action is for this Court to remand for a complete 

reevaluation of all five steps. 

                                                            

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 The Commissioner’s motion appears to be arguing that this Court erred because Judge Debevoise’s prior decision 

to remand only at Step 5 was an error. Notably, the Commissioner did not file a motion for reconsideration of Judge 

Debevoise’s prior remand decision. 

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As authority, the Commissioner relies on the important decisions of Burnett v. 

Commissioner of Social Security Administration, 220 F.3d 112 (3d Cir. 2000) and Thomas v. 

Commissioner of Social Security Administration, 625 F.3d 798 (3d Cir. 2010). But this would 

make the jurisprudence in this case chase its own tail. First, as Judge Debevoise noted in 

granting a remand on Step 5 only: 

[C]ontrary to the Commissioner’s contention, courts, including the Court of 

Appeals, regularly remand with instructions to address specific steps. See e.g., 

Markel v. Barnhart, 324 F.3d 182, 183 (3d Cir. 2003)(remanding and “direct[ing] 

the ALJ to complete Step 3 of the evaluation process”); Burnett v. Commissioner 

of Social Sec. Admin., 220 F.3d 112, 126 (3d Cir. 2000)(remanding with 

instructions that the ALJ “fully develop the record and explain his findings at step 

three”); Gail v. Commissioner of Social Sec., 2008 WL 2704984, at*7 (D.N.J. 

July 9, 2008)(reversed and remanded for “reexamination of the ALJ’s findings at 

Step 3 and Step 5.”). 

[D.E. 21, Ex. A.] Second, opposed to the Commissioner’s contentions, Burnett stands for the 

broader proposition that the ALJ should be directed to reopen the matter, develop the record, and 

make specific findings to prevent post hoc rationalizations for prior decisions. 220 F.3d at 126. 

In Thomas, consistent with the spirit and intent of Burnett, the Third Circuit reversed the 

district court because it had remanded on a single issue (not a full step) and did not direct the 

ALJ to fully develop the record before rendering a decision. Thomas, 625 F.3d at 800. As such, 

the remand “essentially gave the ALJ license to issue an advisory opinion.” Id. The court 

explained that “the purpose of Burnett is not to require a formulaic process that must be adhered 

to on remand, but rather to ensure that the parties have an opportunity to be heard on the 

remanded issue and prevent post hoc rationalization by administrative law judges.” Id. at 800–

01. 

 When Judge Debevoise ordered a remand on Step 5 he specifically noted that “[i]t is 

expected that the VE, when he renders his opinion, will hear all of the full record in this 

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case . . . .” These directions, if followed, serve to prevent the ALJ from issuing an advisory 

opinion. Notwithstanding, and in what became the basis for this Court’s decision in plaintiff’s 

favor, when the ALJ propounded hypotheticals to the vocational expert (“VE”), he inserted a 

flawed RFC and made negative credibility determinations, in effect “fixing” the deficiencies 

found by Judge Debevoise by making assumptions not supported by substantial evidence. Under 

the circumstances, the Commissioner is actually arguing that Step One through Four 

determinations by the ALJ that led to admittedly flawed denials may now be resurrected to once 

again deny Gomez benefits. 

It is impossible to view the Commissioner’s argument for reconsideration as anything 

other than an effort to get traction for a post hoc rationalization for his rulings. Added to the 

addled rationale is the appearance in the record of hypotheticals posed by Gomez’s attorney to 

the VE that were based on substantial evidence. Based on those hypotheticals, the VE testified 

that there were no jobs available for Gomez—and so the record definitively establishes 

disability. In sum, this record not only demonstrates that the Commissioner failed to meet his 

burden to prove at Step 5 that jobs exist in substantial numbers in the national economy, but that 

Gomez’s examination of the VE established disability. As such, contrary to and far from 

directing a remand, the Court is required to reverse and order payment of benefits to Gomez. 

The motion for reconsideration is denied. 

B. The Attorney’s Fee Application and Motion to Stay 

The Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(a) provides that “a court shall 

award to a prevailing party other than the United States fees and other expenses . . . incurred by 

that party in any civil action (other than cases sounding in tort), including proceedings for 

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judicial review of agency action . . . unless the court finds that the position of the United States 

was substantially justified or that special circumstances make an award unjust.” 

 Gomez has timely filed her motion for fees and provided all the information required by 

§2412(d)(1)(B). Because the denial of the Commissioner’s motion for reconsideration confirms 

that Gomez is the prevailing party, Gomez’s fee motion is now ripe for decision. The 

Commissioner’s motion to stay the fee application will be terminated as moot. 

C. Conclusion 

For the foregoing reasons, the Commissioner’s motion for reconsideration is denied and 

the motion for a stay of the fee application is terminated as moot. An appropriate order will be 

entered. 

August 7th, 2012 /s/ Katharine S. Hayden 

 Katharine S. Hayden, U.S.D.J. 

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