Isham v. Commissioner of Social Security

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ELIZABETH ISHAM, 9 Plaintiff, Case No. C19-5245-MLP 10 v. ORDER COMMISSIONER OF SOCIAL SECURITY, Defendant.

This matter comes before the Court on Plaintiff’s motion for relief under Federal Rule of Civil Procedure 59(e). (Dkt. # 15.) Plaintiff re-filed the same document the following day but styled it as “objections.” (Dkt. # 16.) The objections (dkt. # 16) are hereby STRICKEN.

In his Opening Brief and Reply Brief (dkt. ## 10, 12), Plaintiff requested inter alia relief under sentence six of 42 U.S.C. § 405(g) pertaining to new evidence submitted to the Appeals Council after the ALJ’s decision had been entered. In his Rule 59(e) motion, Plaintiff now argues that the Court should have considered this evidence under Brewes v. Comm’r of Social Sec. Admin., 682 F.3d 1157 (9th Cir. 2012), a case not referenced in Plaintiff’s earlier materials.

Specifically, Plaintiff contends that the Appeals Council’s including (though not exhibiting) the new evidence in the certified administrative record satisfies the “good cause” requirement for sentence-six relief, and Plaintiff cites cases where such evidence has been considered under either sentence six or sentence four. (Dkt. # 16 at 3-6.)

3 The Court notes that Rule 59(e) is not a proper vehicle to raise new arguments that could have been raised earlier. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008).

5 Nonetheless, in the interests of justice and in order to permit the Court’s full consideration of this argument, the Commissioner is ORDERED to file a response brief of no more than ten pages, no later than Friday, November 8, 2019. No reply shall be filed absent specific instruction from this Court.

9 Dated this 29th day of October, 2019.

A 12 MICHELLE L. PETERSON United States Magistrate Judge