Opinion
Civil Action No. 02-3574, Section: "R" (5).
July 23, 2004
ORDER AND REASONS
Before the Court is plaintiff Nadier Martin's motion to present out-of-time objections to the magistrate judge's report and recommendation under Federal Rule of Civil Procedure 60(b). Martin moves the Court to reconsider its order, dated April 6, 2004, in which the Court adopted the report and recommendation as its opinion. For the following reasons, the Court grants Martin's motion to reconsider but affirms its earlier order dated April 6, 2004, which adopted the report and recommendation.
I. Background
In January 2001, plaintiff Nadier Martin filed an application for Disability Insurance Benefits and Supplemental Social Security Income Benefits with the Social Security Administration. In her application, Martin alleged that she had been disabled since December 10, 2000. In a Disability Report completed at the time of Martin's application, Martin identified a herniated disc in her back, obesity, high blood pressure, and arthritis as the conditions that rendered her unable to work.
The State Agency denied Martin's application for benefits in July 2001. Several days later, the Commissioner also denied her application. Pursuant to Martin's request, an Administrative Law Judge conducted a hearing de novo on May 23, 2002. At the hearing, Martin, represented by counsel, and a Vocational Expert testified. In August 2002, the ALJ denied Martin's application, finding that she was not disabled within the meaning of the Social Security Act. The Appeals Council subsequently denied Martin's request for review, rendering the ALJ's decision the final decision of the Commissioner.
In December 2002, Martin sued Jo Anne Barnhart, Commissioner of Social Security, in this Court, seeking a review of the ALJ's decision. In July 2003, Martin asked the magistrate judge to remand the matter under 42 U.S.C. § 405(g) to the ALJ in light of "newly available" medical evidence. The "new" evidence that plaintiff seeks to introduce before the ALJ consists of a September 24, 2002 MRI report which reveals that Martin suffers from: (1) L2-L3, L3-L4, and L4-L5 central canal stenosis; (2) hypertrophic changes of the facet joints with bilateral L4-L5 lateral recess stenosis; (3) a bulging degenerative L4-L5 intervertebral disc; (4) protruding/herniated L5-S1 invertebral disc with thecal sac compromise; and (5) lumbar spondylosis, osteochondrosis. Martin also filed a supplemental motion to remand, in which she noted that the Commissioner, after having reviewed the September 2002 MRI report, awarded her DIB benefits as of August 9, 2002 and SSI benefits as of October 17, 2002, but her evidence did not reveal why the benefits were sought or granted.
The magistrate judge mistakenly dated the MRI September 23, 2002. Report and Recommendation, at 5.
( See Rec. Doc. 11, Ex. 1).
On March 2, 2004, the magistrate judge issued a report and recommendation in which she recommended that the Court deny Martin's motion to remand and grant the Commissioner's motion for summary judgment. The magistrate judge found that under the criteria for the introduction of new evidence established in Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995), and Pierre v. Sullivan, 884 F.2d 799 (5th Cir. 1989), Martin had failed to demonstrate that the evidence was new and material and that there was a "reasonable possibility" that the evidence would have changed the outcome of the Commissioner's decision. The Court mailed the report and recommendation to Martin on March 3, 2004. Martin filed no objection to the report and recommendation. Having received no objection from plaintiff and having reviewed de novo the report and recommendation, the Court adopted the report and recommendation as its opinion on April 6, 2004.
On April 6, 2004, Martin filed a Motion to Present Out of Time Objections for Reasons of Excusable Neglect, Mistake, and Error Pursuant to Federal Rule of Civil Procedure 60(b). Martin now seeks to present out-of-time objections to the magistrate judge's report and recommendation. Martin argues that she did not receive the magistrate judge's report and recommendation until ten legal days before April 6, 2004, or March 24, 2004. Specifically, Martin seeks to object to the magistrate judge's determination that the September 2002 MRI is not new or material evidence.
On June 3, 2004, Martin also filed a motion to supplement the judicial record with newly discovered evidence. With this motion, Martin submits the September 2002 MRI that the magistrate judge reviewed in her report and recommendation. Martin also submits an unsigned letter that she received from her former counsel, Matt Greenbaum, that explains her right to appeal the ALJ's unfavorable decision. Martin also asked the Court for leave to file a supplemental brief. Finding that Martin sought to supplement the record with legal arguments and documents that treated the MRI evidence that the magistrate judge rejected, the Court granted Martin leave to supplement the record and to file a supplemental brief by June 14, 2004. Martin filed untimely her supplemental brief on June 23, 2004, in which she raised new legal arguments that she did not present to the magistrate judge and that did not concern the September 2002 MRI.
II. Law
A. Motion to Present Out-of-Time Objections
Martin now seeks leave to file out-of-time objections to the magistrate judge's report and recommendation under Federal Rule of Civil Procedure 60(b) for reasons of excusable neglect, mistake, and error. Although the Federal Rules of Civil Procedure do not formally recognize a motion to reconsider in haec verba, the Fifth Circuit has held that a motion to reconsider a dispositive pretrial motion may be classified under either Rule 59 or Rule 60, depending upon the time of filing. See Pryor v. United States Postal Service, 769 F.2d 281, 285 (5th Cir. 1985); Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n. 14 (5th Cir. 1994) ( en banc). Because plaintiff filed her motion for reconsideration more than ten days after judgment, the motion falls under Rule 60(b) as a motion for "relief from judgment." See Lavespere, 910 F.3d at 173. Under Rule 60(b) a court will grant relief from a final judgment or order only upon a showing of one of:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.
Here, the Court finds that Rule 60(b)(1) allows Martin to file her out-of-time objections to the report and recommendation. Martin argues that she did not receive notice of the magistrate judge's report and recommendation until ten legal days before the Court adopted the report and recommendation as its opinion. The Court takes Martin's allegation at face value and finds that Martin did not timely receive notice of the report and recommendation. The Court therefore finds that "excusable neglect" excuses her failure to file her objections within ten days of the report and recommendation. The Court therefore grants Martin leave to file her objections to the report and recommendation and will reconsider its adoption of the report and recommendation in light of Martin's objections.
B. Analysis
Martin argues that
[a]s Plaintiff is a pauper and could only obtain the new and material MRI showing that she suffers from a ruptured disc and this was a continuing impairment throughout the administrative hearing and she was also quite obese to such an extent that she was approved by DDS for SSI once this MRI was presented to it.
( See Pl.'s Out-of-Time Objections, at 1).
Martin also argues that there was good cause for the failure to incorporate the MRI into the record.
The Court may remand a matter to the Commissioner to consider new evidence "only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g). To justify a remand, the evidence must satisfy three criteria. The evidence must be both new and not merely cumulative of the evidence already in the record. Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir. 1989). The evidence must also be material. See id. In other words, the evidence must be "relevant, probative, and likely to have changed the outcome of the Secretary's determination." Id. Finally, the claimant must show good cause for failing to incorporate the evidence into the administrative record. See id.
As noted above, the magistrate judge found that the MRI was not new and material evidence and that Martin had failed to demonstrate that there was a "reasonable possibility" that the MRI would have changed the ALJ's decision. The magistrate judge noted that the evidence came into existence before the Appeal Council's ruling became final. Because the evidence existed before the Appeals Council handed down its decision on September 27, 2002, the evidence is not new. See, e.g., Latham v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994) (noting that evidence is new when issued after Secretary's determination). Martin argues that she received the MRI too late to present it to the Appeals Council. This is unavailing. As noted by the magistrate judge, the MRI report was generated three days before the Appeals Council handed down its decision, and Martin demonstrated no reason why she could not have submitted it to the Council in an expedited fashion.
Report and Recommendation, at 6.
In addition, Martin fails to demonstrate good cause for not having incorporated an MRI into the record on an earlier date. Indeed, Martin's former counsel Greenbaum notes that an MRI had been scheduled for one week following the administrative hearing in May 2002, but that the MRI had been cancelled. ( See Admin. Rec., at 192). Neither Martin nor her attorney explains why the MRI was canceled. ( See id.). In addition, the ALJ gave Martin two weeks after the administrative hearing during which to submit new medical records, but Martin failed to do so. Further, Martin also underwent an MRI sometime before December 4, 2000 but failed to include those results in the administrative record either. The Court finds that the magistrate judge did not err when she determined that the MRI report is not new evidence or that Martin failed to demonstrate good cause for not having incorporated it into the record earlier.
Nor does Martin address the magistrate judge's concerns about the materiality of the MRI. The magistrate judge found that Martin did not show that there was a reasonable possibility that the MRI report would have changed the ALJ's decision in light of the evidence before him when he denied Martin's request for benefits. In her report and recommendation, the magistrate judge gave a comprehensive list of the medical evidence before the ALJ when he made his decision. ( See Rec. Doc. No. 17, at 6-7). The magistrate judge determined that in light of the similarities between the medical evidence before the ALJ and that of the MRI report, there was no reasonable possibility that the MRI report would have changed his decision. The Court finds no error here.
Since the September 2002 MRI is not "new" as contemplated by § 405(g) and is not material, the Court does not consider it. The Court finds that the magistrate judge correctly determined that the MRI is neither new nor would it have changed the outcome of the administrative proceeding.
C. Supplemental Evidence and Legal Arguments
Martin also seeks to supplement the record with "newly discovered" evidence. This evidence consists of a letter to Martin from her former counsel that explains her appeal rights. Although Martin includes the September 2002 MRI report with this motion, Martin submitted this report to the magistrate judge as an exhibit to her motion to remand, and the Court has already rejected Martin's arguments concerning this report.
When a party seeks to introduce new evidence before the district court that it did not present to the magistrate judge, the Fifth Circuit has held that "the district court need not reject newly-proffered evidence simply because it was not presented to the magistrate judge." Freeman v. County of Bexar, 142 F.3d 848, 852 (5th Cir. 1998). Instead, the district court "should consider, among other things, the reasons for the moving party's default, the importance of the omitted evidence to the moving party's case, whether the evidence was available to the non-movant before she responded to the . . . motion, and the likelihood that the nonmoving party will suffer unfair prejudice if the case is reopened." Id. at 853 (citing Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990)).
Here, the Court has no difficulty in determining that it need not consider the letter. First, the letter, dated October 8, 2002, was available to Martin when she argued her motion to remand before the magistrate judge, and she gives no reason why she did not present it sooner. Second, the letter concerns Martin's appeal rights only, which is completely irrelevant to a determination of whether the MRI report is new and material evidence that warrants a remand of this matter to the ALJ. The Court does not consider the letter.
Martin has also filed a Supplemental Memorandum of Facts and Law on Supplemental Motion for Remand in Opposition to Judgment in Favor of Commissioner. ( See Rec. Doc. No. 25). In this motion, Martin makes several other legal arguments as to why the Court should remand this action. Martin did not raise these legal arguments before the magistrate judge. Before the magistrate judge, Martin merely argued that the court should remand the motion based on "new and material" evidence. ( See Rec. Doc. Nos. 11 16). Because Martin failed to raise these legal arguments before the magistrate judge, she has waived them absent compelling reasons for failing to do so before the magistrate judge. See Freeman v. County of Bexar, 142 F.3d 848, 851-52 (5th Cir. 1998); Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994); Obajuluwa v. Ashcroft, No. Civ. A. 399CV0285P, 2002 WL 31016528, at *4 (N.D. Tex. 2002). Martin has failed to provide the Court with a compelling reason for not having raised these legal arguments before the magistrate judge. The Court therefore need not consider them.